AYODHYA CASE

REPORTABLE

IN THE SUPREME COURT OF INDIA

1
CIVIL APPELLATE JURISDICTION Civil Civil Appeal No 4192/2011
Appeal Nos 10866-10867 of 2010
WITH

Civil Appeal No 5498/2011

WITH
M Siddiq (D) Thr Lrs
Civil Appeal No 7226/2011
…Appellants
AND WITH
Versus
Civil Appeal No 8096/2011

3
Mahant Suresh Das & Ors
…Respondents JUDGMENT

INDEX

WITH A. Introduction

Civil Appeal Nos 4768-4771/2011 B. An overview of the suits

WITH C. Evidence: a bird‘s eye view

Civil Appeal No 2636/2011 D. The aftermath of 1856-7 D.1 Response to the

wall D.2 Period between 1934-1949
WITH
E. Proceedings under Section 145
Civil Appeal No 821/2011
F. Points for determination
WITH
G. The three inscriptions
Civil Appeal No 4739/2011
H. Judicial review and characteristics of a mosque
WITH in Islamic law

Civil Appeal Nos 4905-4908/2011 I. Places of Worship Act

2 J. Juristic personality J.1 Development of the law

J.2 Idols and juristic personality J.3 Juristic
WITH personality of the first plaintiff
Civil Appeal No 2215/2011 J.4 Juristic personality of the second plaintiff
WITH K. Analysis of the suits
Civil Appeal No 4740/2011 L. Suit 1: Gopal Singh Visharad L.1 Pleadings L.2
Issues and findings of the High Court L.3 Analysis
WITH
M. Suit 3: Nirmohi Akhara M.1 Pleadings
Civil Appeal No 2894/2011
4
WITH
M.2 Conflict between Suit 3 and Suit 5 M.3 Issues
Civil Appeal No 6965/2011
and findings of the High Court M.4 Limitation in
WITH Suit 3 M.5 Oral testimony of the Nirmohi witnesses

2
M.6 Nirmohi Akhara‘s claim to possession of the 1. These first appeals centre around a dispute
inner courtyard Documentary evidence in regard to between two religious
the mosque (1934-1949)
communities both of whom claim ownership over a
N. Suit 5: The deities N.1 Array of parties N.2 No piece of land admeasuring
contest by the State of Uttar Pradesh N.3 Pleadings
N.4 Written statements N.5 Issues and findings of 1500 square yards in the town of Ayodhya. The
the High Court N.6 Shebaits: an exclusive right to disputed property is of immense
sue? A suit by a worshipper or a person interested
significance to Hindus and Muslims. The Hindu
Nirmohi Akhara and shebaiti rights community claims it as the birth

N.7 Limitation in Suit 5 The argument of perpetual place of Lord Ram, an incarnation of Lord Vishnu.
minority The Muslim community claims

N.8 The Suit of 1885 and Res Judicata N.9 it as the site of the historic Babri Masjid built by
Archaeological report N.10 Nature and use of the the first Mughal Emperor, Babur.
disputed structure: oral evidence N.11 Photographs
The lands of our country have witnessed invasions
of the disputed structure N.12 Vishnu Hari
and dissensions. Yet they
inscriptions N.13 The polestar of faith and belief
Travelogues, gazetteers and books Evidentiary have assimilated into the idea of India everyone
value of travelogues, gazetteers and books N.14 who sought their providence,
Historian‘s report
whether they came as merchants, travellers or as
O. Suit 4: Sunni Central Waqf Board O.1 conquerors. The history and
Analysis of the plaint O.2 Written statements
culture of this country have been home to quests
5 for truth, through the material,
O.3 Issues and findings of the High Court O.4 the political, and the spiritual. This Court is called
Limitation in Suit 4 O.5 Applicable legal regime upon to fulfil its adjudicatory
and Justice, Equity and Good Conscience O.6
Grants and recognition O.7 Disputes and cases function where it is claimed that two quests for the
affirming possession Impact of Suit of 1885 truth impinge on the freedoms
Incidents between 1934 and 1950 O.8 Proof of
namaz O.9 Placing of idols in 1949 O.10 Nazul of the other or violate the rule of law.
land O.11 Waqf by user O.12 Possession and
2. This Court is tasked with the resolution of a
adverse possession O.13 Doctrine of the lost grant
dispute whose origins are as
O.14 The smokescreen of the disputed premises –
the wall of 1858 O.15 Analysis of evidence in Suit old as the idea of India itself. The events associated
4 O.16 The Muslim claim to possessory title with the dispute have
P. Analysis on title P.1 Marshalling the evidence spanned the Mughal empire, colonial rule and the
in Suit 4 and Suit 5 P.2 Conclusion on title present constitutional regime.
Q. Reliefs and directions Constitutional values form the cornerstone of this
nation and have facilitated the

lawful resolution of the present title dispute

PART A through forty-one days of hearings
6 before this Court. The dispute in these appeals
arises out of four regular suits
A. Introduction

3
which were instituted between 1950 and 1989. worshipper, Gopal Singh Visharad seeking a
Before the Allahabad High Court, declaration that according to his

voluminous evidence, both oral and documentary religion and custom, he is entitled to offer prayers
was led, resulting in three at the main Janmabhumi

judgements running the course of 4304 pages. This temple near the idols.
judgement is placed in
5. The Nirmohi Akhara represents a religious sect
PART A amongst the Hindus,

7 known as the Ramanandi Bairagis. The Nirmohis

claim that they were, at all
challenge in the appeals.
material times, in charge and management of the
3. The disputed land forms part of the village of structure at the disputed site
Kot Rama Chandra or, as it is
which according to them was a ‗temple‘ until 29
otherwise called, Ramkot at Ayodhya, in Pargana December 1949, on which date
Haveli Avadh, of Tehsil Sadar
an attachment was ordered under Section 145 of
in the District of Faizabad. An old structure of a the Code of Criminal Procedure
mosque existed at the site until 6
PART A
December 1992. The site has religious significance
for the devotees of Lord 8

Ram, who believe that Lord Ram was born at the 1898. In effect, they claim as shebaits in service of
disputed site. For this reason, the deity, managing its affairs

the Hindus refer to the disputed site as Ram and receiving offerings from devotees. Theirs is a
Janmabhumi or Ram Janmasthan Suit of 1959 for the

(i.e. birth-place of Lord Ram). The Hindus assert management and charge of ‗the temple‘.
that there existed at the
6. The Uttar Pradesh Sunni Central Board of Waqf
disputed site an ancient temple dedicated to Lord (―Sunni Central Waqf
Ram, which was demolished
Board‖) and other Muslim residents of Ayodhya
upon the conquest of the Indian sub-continent by instituted a suit in 1961 for a
Mughal Emperor Babur. On the
declaration of their title to the disputed site.
other hand, the Muslims contended that the mosque According to them, the old structure
was built by or at the behest
was a mosque which was built on the instructions
of Babur on vacant land. Though the significance of Emperor Babur by Mir Baqi
of the site for the Hindus is not
who was the Commander of his forces, following
denied, it is the case of the Muslims that there the conquest of the sub
exists no proprietary claim of the
continent by the Mughal Emperor in the third
Hindus over the disputed property. decade of the sixteenth century.

4. A suit was instituted in 1950 before the Civil The Muslims deny that the mosque was constructed
Judge at Faizabad by a Hindu on the site of a destroyed

4
temple. According to them, prayers were dated 30 September 2010. The High Court held that
uninterruptedly offered in the mosque the suits filed by the Sunni

until 23 December 1949 when a group of Hindus Central Waqf Board and by Nirmohi Akhara were
desecrated it by placing idols barred by limitation. Despite

within the precincts of its three-domed structure having held that those two suits were barred by
with the intent to destroy, time, the High Court held in a

damage and defile the Islamic religious structure. split 2:1 verdict that the Hindu and Muslim parties
The Sunni Central Waqf Board were joint holders of the

claims a declaration of title and, if found necessary, disputed premises. Each of them was held entitled
a decree for possession. to one third of the disputed

7. A suit was instituted in 1989 by a next friend on property. The Nirmohi Akhara was granted the
behalf of the deity remaining one third. A preliminary

(―Bhagwan Shri Ram Virajman‖) and the birth- decree to that effect was passed in the suit brought
place of Lord Ram (―Asthan Shri by the idol and the birth-place

Ram Janmabhumi‖). The suit is founded on the of Lord Ram through the next friend.
claim that the law recognises
9. Before deciding the appeals, it is necessary to set
both the idol and the birth-place as juridical out the significant
entities. The claim is that the place of
events which have taken place in the chequered
birth is sanctified as an object of worship, history of this litigation, which
personifying the divine spirit of Lord
spans nearly seven decades.
Ram. Hence, like the idol (which the law
recognises as a juridical entity), the 10. The disputed site has been a flash point of
continued conflagration over
place of birth of the deity is claimed to be a legal
person, or as it is described in decades. In 1856-57, riots broke out between
Hindus and Muslims in the vicinity
legal parlance, to possess a juridical status. A
declaration of title to the disputed of the structure. The colonial government
attempted to raise a buffer between the
PART A
two communities to maintain law and order by set
9 ting up a grill-brick wall having

site coupled with injunctive relief has been sought. a height of six or seven feet. This would divide the
premises into two parts: the
8. These suits, together with a separate suit by
Hindu worshippers were inner portion which would be used by the Muslim
community and the outer
transferred by the Allahabad High Court to itself
for trial from the civil court at portion or courtyard, which would be used by the
Hindu community. The outer
Faizabad. The High Court rendered a judgment in
original proceedings arising PART A

out of the four suits and these appeals arise out of 10

the decision of a Full Bench

5
courtyard has several structures of religious appeal3, noting that the Mahant had failed to
significance for the Hindus, such as present evidence of title to establish

the Sita Rasoi and a platform called the ownership of the Chabutra. In 1934, there was yet
Ramchabutra. In 1877, another door was another conflagration between

opened on the northern side of the outer courtyard the two communities. The domed structure of the
by the colonial government, mosque was damaged during

which was given to the Hindus to control and 1 (OS No. 61/280 of
manage. The bifurcation, as the 1885) 2 Civil Appeal No. 27/1885 3 No 27 of
1886
record shows, did not resolve the conflict and there
were numerous attempts by PART A

one or other of the parties to exclude the other. 11

11. In January 1885, Mahant Raghubar Das, the incident and was subsequently repaired at the
claiming to be the Mahant of cost of the colonial

Ram Janmasthan instituted a suit1 (―Suit of government.

1885‖) before the Sub-Judge,
12. The controversy entered a new phase on the
Faizabad. The relief which he sought was night intervening 22 and 23
permission to build a temple on the
December 1949, when the mosque was desecrated
Ramchabutra situated in the outer courtyard, by a group of about fifty or
measuring seventeen feet by
sixty people who broke open its locks and placed
twenty-one feet. A sketch map was filed with the idols of Lord Ram under the
plaint. On 24 December 1885,
central dome. A First Information Report (―FIR‖)
the trial judge dismissed the suit, `noting that there was registered in relation to the
was a possibility of riots
incident. On 29 December 1949, the Additional
breaking out between the two communities due to City Magistrate, Faizabad-cum
the proposed construction of a
Ayodhya issued a preliminary order under Section
temple. The trial judge, however, observed that 145 of the Code of Criminal
there could be no question or
Procedure 18984 (―CrPC 1898‖), treating the
doubt regarding the possession and ownership of situation to be of an emergent
the Hindus over the Chabutra.
nature. Simultaneously, an attachment order was
On 18 March 1886, the District Judge dismissed issued and Priya Datt Ram, the
the appeal against the judgment
Chairman of the Municipal Board of Faizabad was
of the Trial Court2 but struck off the observations appointed as the receiver of
relating to the ownership of
the inner courtyard. On 5 January 1950, the
Hindus of the Chabutra contained in the judgment receiver took charge of the inner
of the Trial Court. On 1
courtyard and prepared an inventory of the attached
November 1886, the Judicial Commissioner of properties. The Magistrate
Oudh dismissed the second
passed a preliminary order upon recording a
satisfaction that the dispute between

6
the two communities over their claims to worship the plaintiff to offer prayers in accordance with the
and proprietorship over the rites and tenets of his religion

structure would likely lead to a breach of peace. (―Sanatan Dharm‖) at the ―main Janmabhumi‖,
The stakeholders were allowed near the idols, within the inner

to file their written statements. Under the courtyard, without hindrance. On the same date, an
Magistrate‘s order, only two or three ad-interim injunction was

pujaris were permitted to go inside the place where issued in the suit. On 19 January 1950, the
the idols were kept, to injunction was modified to prevent the

perform religious ceremonies like bhog and puja. idols from being removed from the disputed site
Members of the general public and from causing interference in

were restricted from entering and were only the performance of puja. On 3 March 1951, the
allowed darshan from beyond the Trial Court confirmed the ad

grill-brick wall. interim order, as modified. On 26 May 1955, the

4―Section 145. Procedure where dispute appeal6 against the interim order
concerning land, etc, is likely to cause breach of
peace (1) Whenever a District Magistrate, or an was dismissed by the High Court of Allahabad.
Executive Magistrate specially empowered by the
14. On 5 December 1950, another suit was
Government in this behalf is satisfied from a
instituted by Paramhans
police-report or other information that a dispute
likely to cause a breach of the peace exists Ramchandra Das7 (―Suit 2‖) before the Civil
concerning any land or water of the boundaries Judge, Faizabad seeking reliefs
thereof, within the local limits of his jurisdiction,
he shall make an order in writing, stating the similar to those in Suit 1. Suit 2 was subsequently
grounds of his being so satisfied, and requiring the withdrawn on 18 September
parties concerned in such dispute to attend his
Court in person or by pleader, within a time to be 1990.
fixed by such Magistrate, and to put in written
15. On 1 April 1950, a Court Commissioner was
statements of their respective claims as respects the
appointed in Suit 1 to prepare
fact of actual possession of the subject of dispute…
‖ a map of the disputed premises. On 25 June 1950,
the Commissioner submitted
PART A
a report, together with two site plans of the
12
disputed premises which were
The institution of the suits
numbered as Plan nos 1 and 2 to the Trial Court.
13. On 16 January 1950, a suit was instituted by a Both the report and maps
Hindu devotee, Gopal 5 Regular Suit No 2 of 1950. Subsequently
renumbered as Other Original Suit (OOS) No 1 of
Singh Visharad5, (―Suit 1‖) before the Civil Judge 1989. 6 FAFO No 154 of 1951 7 Regular Suit no
at Faizabad, alleging that he 25 of 1950 (subsequently renumbered as Other
Original Suit (OOS) No 2 of 1989)
was being prevented by officials of the government
from entering the inner PART A

courtyard of the disputed site to offer worship. A 13

declaration was sought to allow
indicate the position at the site and are reproduced
below:

7
Report of the Commissioner 14

―REPORT joint neem-pipal tree, surrounded by a semi-

circular pucca platform, on which are installed
Sir, I was appointed a commissioner in the above marble idols of Panchmukhi Mahadev, Parbati,
case to prepare a site plan of the locality and Ganesh and Nandi.
building in suit on scale. Accordingly, in
compliance with the order of the court, I visited the On the northern floor there is a pucca platform, 8‘ x
locality on 16.4.50 and again on 30.4.50 after 9‘, called ―Sita Rasoi.‖ On this platform there is a
giving due notice to the counsel of the parties, and pucca chulha with chauka and belna, made of
made necessary measurements on the spot. On the marble, affixed by its side. To the east of the
first day of my visit none of the parties were chulha there are four pairs of marble foot prints of
present, but on the second day defendant no. 1 was Ram, Lakshman, Bharat & Shatrunghna.
present with Shri Azimullah Khan and Shri Habib
Ahmad Khan counsel. At about noon defendant no. The pucca courtyard in front of the inner (main)
1 presented an application, attached herewith, when building is enclosed by walls NHJK intercepted by
the measurement work had already finished. iron bars with two iron bar gates at O and P as
shown in the Plan no.I. At the southern end of this
Plan No. I represents the building in suit shown by Courtyard there are 14 stairs leading to the roof of
the figure ABCDEF on a larger scale than Plan the building, and to the south of the stairs there is a
no.II, which represents the building with its raised pucca platform 2‘ high, having a urinal
locality. marked U at its south-west corner. There are three
arched gates, X,Y and Z leading to the main
A perusal of Plan No.I would show that the building, which is divided into three portions,
building has got two gates, one on the east and the having arches at Q and R. There is a chhajja
other on the north, known as ―Hanumatdwar‖ and (projected roof) above the arch Y. 31.
―Singhdwar‖ respectively. The ―Hanumatdwar‖
is the main entrance gate to the building. At this The three arches, Y, Q and R are supported on 12
gate there is a stone slab fixed to the ground black kasauti stone pillars, each 6‘ high, marked
containing the inscription ―1-Shri Janma Bhumi with letters c to n in Plan no. I. The pillars e to m
nitya yatra,‖ and a big coloured picture of Shri have carvings of kamal flowers thereon. The pillar
Hanumanji is placed at the top of the gate. The arch contains the image of Shankar Bhagwan in
of this entrance gate, 10‘ in height, rests on two Tandava nritya form and another disfigured image
black kasauti stone pillars, each 4‘ high, marked a engraved thereon. The pillar J contained the carved
and b, containing images of ―Jai and Vijai‖ image of Hanumanji. The pillar N has got the
respectively engraved thereon. To the south of this image of Lord Krishna engraved thereon other
gate on the outer wall there is engraved a stone pillars have also got carvings of images which are
image, 5‘ long, known as ―Varah Bhagwan.‖ The effaced.
northern gate, known as ―Singhdwar,‖ 19‘6‖ in
height, has got at its top images of Garura in the In the central portion of the building at the north-
middle and two lions one on each side. western corner, there is a pucca platform with two
stairs, on which is installed the idol of Bal Ram
On entering the main gate there is pucca floor on (infant Ram).
the eastern and northern side of the inner building,
marked by letters GHJKL DGB on the north of the At the top of the three portions of the building there
eastern floor there is a neem tree, and to the south are three round domes, as shown separately in Plan
of it there is the bhandara (kitchen). Further south no.I, each on an octagonal base. There are no
there is a raised pucca platform, 17‘ x 21‘ and 4‘ towers, nor is there any ghusalkhana or well in the
high, known as ―Ram Chabutra,‖ on which stands building.
a small temple having idols of Ram and Janki
Around the building there is a pucca path known as
installed therein. At the south-eastern corner E
parikrama, as shown in yellow in Plan Nos.I & II.
there is a
On the west of the parikrama, the land is about 20‘
PART A low, while the pucca road on the northern side is

8
about 18‘ low. Other structures found on the 16. On 17 December 1959, Nirmohi Akhara
locality have been shown in Plan no.II at their instituted a suit8 through its
proper places.
Mahant (―Suit 3‖) before the Civil Judge at
The land shown by letters S and T is covered by Faizabad claiming that its ―absolute
huts and dhunis of sadhus. Adjacent to and south of
the land right‖ of managing the affairs of the Janmasthan
and the temple had been
PART A
impacted by the Magistrate‘s order of attachment
15 and by the appointment of a

shown by letter T, there is a raised platform, receiver under Section 145. A decree was sought to
bounded by walls, 4‘ 6‖ high, with a passage hand over the management
towards west, known as ―shankar chabutra.‖ The
pucca well, known as ―Sita koop‖ has got a tin and charge of the temple to the plaintiff in Suit 3.
shed over it, and a stone slab is fixed close to it
17. On 18 December 1961, the Sunni Central Waqf
with the inscription ―3-Sita koop‖. To the south -
Board and nine Muslim
west of this well there is another stone slab fixed
into the ground with the inscription ―4-Sumitra residents of Ayodhya filed a suit9 (―Suit 4‖)
Bhawan‖. On the raised platform of Sumitra before the Civil Judge at Faizabad
Bhawan there is a stone slab fixed to the ground,
marked, carved with the image of Shesh nag. seeking a declaration that the entire disputed site of
the Babri Masjid was a public
The names of the various samadhis and other
structures as noted in Plan No. II were given by mosque and for the delivery of possession upon
sadhus and others present on the spot. removal of the idols.

Plans nos.I and II, which form part of this report, 18. On 6 January 1964, the trial of Suits 1, 3 and 4
two notices given to parties counsel and the was consolidated and Suit
application presented by defendant no.1 are
attached herewith. 4 was made the leading case.

I have the honour to be, Sir, Your most obedient 19. On 25 January 1986, an application was filed
servant, Shiva Shankar Lal, Faizabad. by one Umesh Chandra
Pleader 25.5.50
before the Trial Court for breaking open the locks
Commissioner.‖
placed on the grill-brick wall

and for allowing the public to perform darshan

within the inner courtyard. On 1
PART A
February 1986, the District Judge issued directions
16
to open the locks and to
Site map (Plan I)
provide access to devotees for darshan inside the
PART A structure. In a Writ Petition10

17 filed before the High Court challenging the above

order, an interim order was
Site map (Plan II)
passed on 3 February 1986 directing that until
PART A further orders, the nature of the

18 property as it existed shall not be altered.

9
 8 Regular Suit No 26 of amenities to pilgrims in Ayodhya‘. A Writ Petition
1959 (subsequently renumbered as OOS No. 3 of was filed before the High Court
1989) 9 Regular Suit No. 12 of 1961 (subsequently
renumbered as OOS No. 4 of 1989) 10Civil Misc. challenging the acquisition. By a judgment and
Writ No. 746 of 1986 order dated 11 December 1992,

PART A the acquisition was set aside.

19 23. A substantial change took place in the position

at the site on 6 December
20. On 1 July 1989, a Suit11 (―Suit 5‖) was
brought before the Civil Judge, 1992. A large crowd destroyed the mosque,
boundary wall, and Ramchabutra. A
Faizabad by the deity (―Bhagwan Shri Ram
Virajman‖) and the birth-place makeshift structure of a temple was constructed at
the place under the erstwhile
(―Asthan Shri Ram Janam Bhumi, Ayodhya‖),
through a next friend for a 11 Regular Suit No. 236
of 1989 (subsequently renumbered as OOS No. 5
declaration of title to the disputed premises and to of 1989)
restrain the defendants from
PART A
interfering with or raising any objection to the
construction of a temple. Suit 5 was 20

tried with the other suits. central dome. The idols were placed there.

21. On 10 July 1989, all suits were transferred to Acquisition by the Central Government and Ismail
the High Court of Judicature Faruqui‘s case

at Allahabad. On 21 July 1989, a three judge Bench 24. The Central Government acquired an area of
was constituted by the Chief about 68 acres, including the

Justice of the High Court for the trial of the suits. premises in dispute, by a legislation called the
On an application by the State Acquisition of Certain Area at

of Uttar Pradesh, the High Court passed an interim Ayodhya Act 1993 (―Ayodhya Acquisition Act
order on 14 August 1989, 1993‖). Sections 3 and 4

directing the parties to maintain status quo with envisaged the abatement of all suits which were
respect to the property in dispute. pending before the High Court.

22. During the pendency of the proceedings, the Simultaneously, the President of India made a
State of Uttar Pradesh reference to this Court under

acquired an area of 2.77 acres comprising of the Article 143 of the Constitution. The reference was
disputed premises and certain on ―(w)hether a Hindu temple

adjoining areas. This was effected by notifications or any Hindu religious structure existed prior to the
dated 7 October 1991 and 10 construction of the Ram

October 1991 under Sections 4(1), 6 and 17(4) of Janam Bhoomi and Babari Masjid (including the
the Land Acquisition Act 1894 premises of the inner and outer

(―Land Acquisition Act‖). The acquisition was for courtyards on such structure) in the area on which
‗development and providing the structure stands…‖.

10
25. Writ petitions were filed before the High Court validity of the remaining Act, except for sub-
of Allahabad and this Court section (3) of Sec. 4, is rejected.

challenging the validity of the Act of 1993. All the (2) Irrespective of the status of a mosque under the
petitions and the reference by Muslim law applicable in the Islamic countries, the
status of a mosque under the Mahomedan Law
the President were heard together and decided by a applicable in secular India is the same and equal to
judgment dated 24 October that of any other place of worship of any religion;
and it does not enjoy any greater immunity from
1994. The decision of a Constitution Bench of this
acquisition in exercise of the sovereign or
Court, titled Dr M Ismail
prerogative power of the State, than that of the
Faruqui v Union of India12 held Section 4(3), places of worship of the other religions.
which provided for the abatement
(3) The pending suits and other proceedings
of all pending suits as unconstitutional. The rest of relating to the disputed area within which the
the Act of 1993 was held to be structure (including the premises of the inner and
outer courtyards of such structure), commonly
valid. The Constitution Bench declined to answer known as the Ram Janma Bhumi - Babri Masjid,
the Presidential reference and, stood, stand revived for adjudication of the dispute
therein, together with the interim orders made,
as a result, all pending suits and proceedings in except to the extent the interim orders stand
relation to the disputed premises modified by the provisions of Section 7 of the Act.

stood revived. The Central Government was (4) The vesting of the said disputed area in the
appointed as a statutory receiver for Central Government by virtue of Section 3 of the
Act is limited, as a statutory receiver with the duty
the maintenance of status quo and to hand over the
for its management and administration according to
disputed area in terms of the
Section 7 requiring maintenance of status quo
12 (1994) 6 SCC 360 therein under sub-section (2) of Section 7 of the
Act. The duty of the Central Government as the
PART A statutory receiver is to handover the disputed area
in accordance with Section 6 of the Act, in terms of
21 the adjudication made in the suits for
implementation of the final decision therein. This is
adjudication to be made in the suits. The
the purpose for which the disputed area has been so
conclusions arrived at by the
acquired.
Constitution Bench are extracted below:
PART A
―96. ... (1)(a) Sub-section (3) of Section 4 of the
22
Act abates all pending suits and legal proceedings
without providing for an alternative dispute (5) The power of the courts in making further
resolution mechanism for resolution of the disputes interim orders in the suits is limited to, and
between the parties thereto. This is an extinction of circumscribed by, the area outside the ambit of
the judicial remedy for resolution of the dispute Section 7 of the Act.
amounting to negation of rule of law. Sub-section
(3) of Section 4 of the Act is, therefore, (6) The vesting of the adjacent area, other than the
unconstitutional and invalid. disputed area, acquired by the Act in the Central
Government by virtue of Section 3 of the Act is
(1)(b) The remaining provisions of the Act do not absolute with the power of management and
suffer from any invalidity on the construction made administration thereof in accordance with sub-
thereof by us. Subsection (3) of Section 4 of the section (1) of Section 7 of the Act, till its further
Act is severable from the remaining Act. vesting in any authority or other body or trustees of
Accordingly, the challenge to the constitutional any trust in accordance with Section 6 of the Act.

11
The further vesting of the adjacent area, other than The proceedings before the High Court
the disputed area, in accordance with Sec. 6 of the
Act has to be made at the time and in the manner 26. The recording of oral evidence before the High
indicated, in view of the purpose of its acquisition. Court commenced on 24

(7) The meaning of the word "vest" in Section 3 July 1996. During the course of the hearings, the
and Section 6 of the Act has to be so understood in High Court issued directions on
the different contexts.
23 October 2002 to the Archaeological Survey of
(8) Section 8 of the Act is meant for payment of India (―ASI‖) to carry out a
compensation to owners of the property vesting
scientific investigation and have the disputed site
absolutely in the Central Government, the title to
surveyed by Ground
which is not in dispute being in excess of the
disputed area which alone is the subject matter of Penetrating Technology or Geo-Radiology
the revived suits. It does not apply to the disputed (―GPR‖). The GPR report dated 17
area, title to which has to be adjudicated in the suits
and in respect of which the Central Government is February 2003 indicated a variety of ―anomalies‖
merely the statutory receiver as indicated, with the which could be associated with
duty to restore it to the owner in terms of the
adjudication made in the suits. ―ancient and contemporaneous structures‖ such as
pillars, foundations, wall slabs
(9) The challenge to acquisition of any part of the
adjacent area on the ground that it is unnecessary and flooring extending over a large portion of the
for achieving the professed objective of settling the disputed site. In order to
long standing dispute cannot be examined at this
facilitate a further analysis, the High Court directed
stage. However, the area found to be superfluous
the ASI on 5 March 2003 to
on the exact area needed for the purpose being
determined on adjudication of the dispute, must be undertake the excavation of the disputed site. A
restored to the undisputed owners. fourteen-member team was
(10) Rejection of the challenge by the undisputed constituted, and a site plan was prepared indicating
owners to acquisition of some religious properties the number of trenches to be
in the vicinity of the disputed area, at this stage is
with the liberty granted to them to renew their laid out and excavated. On 22 August 2003, the
challenge, if necessary at a later appropriate stage, ASI submitted its final report.
in cases of continued retention by Central
Government of their property in excess of the exact The High Court heard objections to the report.
area determined to be needed on adjudication of the
27. Evidence, both oral and documentary, was
dispute.
recorded before the High
(11) Consequently, the Special Reference No. 1 of
Court. As one of the judges, Justice Sudhir
1993 made by the President of India under Art.
Agarwal noted, the High Court had
143(1) of the Constitution of India is superfluous
and unnecessary and does not require to be before it 533 exhibits and depositions of 87
answered. For this reason, we very respectfully witnesses traversing 13,990 pages.
decline to answer it and return the same.
Besides this, counsel relied on over a thousand
PART A reference books in Sanskrit,
23 Hindi, Urdu, Persian, Turkish, French and English,
ranging from subjects as
(12) The questions relating to the constitutional
validity of the said Act and maintainability of the diverse as history, culture, archaeology and
Special Reference are decided in these terms.‖ religion. The High Court ensured that

12
PART A party may be compensated by allotting some
portion of the adjoining land which has been
24 acquired by the Central Government.

the innumerable archaeological artefacts were kept The parties are at liberty to file their suggestions
in the record room. It for actual partition by metes and bounds within
three months.
received dozens of CDs and other records which
the three judges of the High PART A

Court have marshalled. 25

The decision of the High Court List immediately after filing of any suggestion/
application for preparation of final decree after
28. On 30 September 2010, the Full Bench of the
obtaining necessary instructions from Hon'ble the
High Court comprising of
Chief Justice.
Justice S U Khan, Justice Sudhir Agarwal and
Status quo as prevailing till date pursuant to
Justice D V Sharma delivered the
Supreme Court judgment of Ismail Farooqui
judgment, which is in appeal. Justice S U Khan and (1994(6) Sec 360) in all its minutest details shall be
Justice Sudhir Agarwal held maintained for a period of three months unless this
order is modified or vacated earlier.‖
―all the three sets of parties‖ – Muslims, Hindus
and Nirmohi Akhara - as joint Justice Sudhir Agarwal partly decreed Suits 1 and
5. Suits 3 and 4 were
holders of the disputed premises and allotted a one
third share to each of them in dismissed as being barred by limitation. The
learned judge concluded with the
a preliminary decree. Justice S U Khan held thus:
following directions:
―Accordingly, all the three sets of parties, i.e.
Muslims, Hindus and Nirmohi Akhara are declared ―4566… (i) It is declared that the area covered by
joint title holders of the property/ premises in the central dome of the three domed structure, i.e.,
dispute as described by letters A B C D E F in the the disputed structure being the deity of Bhagwan
map Plan-I prepared by Sri Shiv Shanker Lal, Ram Janamsthan and place of birth of Lord Rama
Pleader/ Commissioner appointed by Court in Suit as per faith and belief of the Hindus, belong to
No.1 to the extent of one third share each for using plaintiffs (Suit-5) and shall not be obstructed or
and managing the same for worshipping. A interfered in any manner by the defendants. This
preliminary decree to this effect is passed. area is shown by letters AA BB CC DD in
Appendix 7 to this judgment.
However, it is further declared that the portion
below the central dome where at present the idol is (ii) The area within the inner courtyard denoted by
kept in makeshift temple will be allotted to Hindus letters B C D L K J H G in Appendix 7 (excluding
in final decree. (i) above) belong to members of both the
communities, i.e., Hindus (here plaintiffs, Suit-5)
It is further directed that Nirmohi Akhara will be and Muslims since it was being used by both since
allotted share including that part which is shown by decades and centuries. It is, however, made clear
the words Ram Chabutra and Sita Rasoi in the said that for the purpose of share of plaintiffs, Suit-5
map. under this direction the area which is covered by (i)
above shall also be included.
It is further clarified that even though all the three
parties are declared to have one third share each, (iii) The area covered by the structures, namely,
however if while allotting exact portions some Ram Chabutra, (EE FF GG HH in Appendix 7) Sita
minor adjustment in the share is to be made then Rasoi (MM NN OO PP in Appendix 7) and
the same will be made and the adversely affected Bhandar (II JJ KK LL in Appendix 7) in the outer

13
courtyard is declared in the share of Nirmohi (vii) For a period of three months or unless directed
Akhara (defendant no. 3) and they shall be entitled otherwise, whichever is earlier, the parties shall
to possession thereof in the absence of any person maintain status quo as on today in respect of
with better title. property in dispute.‖

(iv) The open area within the outer courtyard (A G Justice D V Sharma decreed Suit 5 in its entirety.
H J K L E F in Appendix 7) (except that covered Suits 3 and 4 were dismissed
by (iii) above) shall be shared by Nirmohi Akhara
(defendant no. 3) and plaintiffs (Suit-5) since it has as being barred by limitation. Justice D V Sharma
been generally used by the Hindu people for concluded:
worship at both places.
―Plaintiff‘s suit is decreed but with easy costs. It
PART A is hereby declared that the entire premises of Sri
Ram Janm Bhumi at Ayodhya as described and
26 delineated in annexure Nos. 1 and 2 of the plaint
belong to the plaintiff Nos. 1 and 2, the deities. The
(iv-a) It is however made clear that the share of defendants are permanently restrained from
muslim parties shall not be less than one third (1/3) interfering with, or raising any objection to, or
of the total area of the premises and if necessary it placing any obstruction in the construction of the
may be given some area of outer courtyard. It is temple at Ram Janm Bhumi Ayodhya at the site,
also made clear that while making partition by referred to in the plaint.‖
metes and bounds, if some minor adjustments are
to be made with respect to the share of different PART A
parties, the affected party may be compensated by
allotting the requisite land from the area which is 27
under acquisition of the Government of India.
The parties preferred multiple Civil Appeals and
(v) The land which is available with the Special Leave Petitions before
Government of India acquired under Ayodhya Act
this Court against the judgment of the High Court.
1993 for providing it to the parties who are
successful in the suit for better enjoyment of the Proceedings before this Court
property shall be made available to the above
concerned parties in such manner so that all the 29. On 9 May 2011, a two judge Bench of this
three parties may utilise the area to which they are Court admitted several appeals
entitled to, by having separate entry for egress and
ingress of the people without disturbing each others and stayed the operation of the judgment and
rights. For this purpose the concerned parties may decree of the Allahabad High
approach the Government of India who shall act in
Court. During the pendency of the appeals, parties
accordance with the above directions and also as
were directed to maintain
contained in the judgement of Apex Court in Dr.
Ismail Farooqi (Supra). status quo with respect to the disputed premises in
accordance with the
(vi) A decree, partly preliminary and partly final, to
the effect as said above (i to v) is passed. Suit-5 is directions issued in Ismail Faruqui. The Registry of
decreed in part to the above extent. The parties are this Court was directed to
at liberty to file their suggestions for actual
partition of the property in dispute in the manner as provide parties electronic copies of the digitised
directed above by metes and bounds by submitting records.
an application to this effect to the Officer on
Special Duty, Ayodhya Bench at Lucknow or the 30. On 10 September 2013, 24 February 2014, 31
Registrar, Lucknow Bench, Lucknow, as the case October 2015 and 11
may be.
August 2017, this Court issued directions for
summoning the digital record of the

14
evidence and pleadings from the Allahabad High to a Court appointed and monitored mediation to
Court and for furnishing explore the possibility of

translated copies to the parties. On 10 August 2015, bringing about a permanent solution to the issues
a three judge Bench of this raised in the appeals. On 8

Court allowed the Commissioner, Faizabad March 2019, a panel of mediators comprising of (i)
Division to replace the old and worn Justice Fakkir Mohamed

out tarpaulin sheets over the makeshift structure Ibrahim Kalifulla, a former Judge of this Court; (ii)
under which the idols were Sri Sri Ravi Shankar; and (iii)

placed with new sheets of the same size and Mr Sriram Panchu, Senior Advocate was
quality. constituted. Time granted to the

31. On 5 December 2017, a three judge Bench of mediators to complete the mediation proceedings
this Court rejected the plea was extended on 10 May 2019.

that the appeals against the impugned judgement be Since no settlement had been reached, on 2 August
referred to a larger Bench in 2019, the hearing of the

view of certain observations of the Constitution appeals was directed to commence from 6 August
Bench in Ismail Faruqui. On 14 2019. During the course of

March 2018, a three judge Bench heard arguments hearing, a report was submitted by the panel of
on whether the judgment in mediators that some of the

Ismail Faruqui required reconsideration. On 27 parties desired to settle the dispute. This Court by
September 2018, the three judge its order dated 18 September

Bench of this Court by a majority of 2:1 declined to 2019 observed that while the hearings will proceed,
refer the judgment in Ismail if any parties desired to settle

PART A the dispute, it was open for them to move the

mediators and place a settlement, if
28
it was arrived at, before this Court. Final arguments
Faruqui for reconsideration and listed the appeals were concluded in the batch
against the impugned
of appeals on 16 October 2019. On the same day,
judgement for hearing. the mediation panel submitted

32. By an administrative order dated 8 January a report titled ―Final Report of the Committee‖
2019 made pursuant to the stating that a settlement had been

provisions of Order VI Rule 1 of the Supreme arrived at by some of the parties to the present
Court Rules, 2013, the Chief dispute. The settlement was

Justice of India constituted a five judge Bench to PART B

hear the appeals. On 10
29
January 2019, the Registry was directed to inspect
the records and if required, signed by Mr Zufar Ahmad Faruqi, Chairman of
the Sunni Central Waqf Board.
engage official translators. On 26 February 2019,
this Court referred the parties Though under the settlement, the Sunni Central
Waqf Board agreed to relinquish

15
all its rights, interests and claims over the disputed (i) A declaration of his entitlement to worship and
land, this was subject to the seek the darshan of Lord

fulfilment of certain conditions stipulated. The Ram, ―according to religion and custom‖ at the
settlement agreement received by Janmabhumi temple

this Court from the mediation panel has not been without hindrance; and
agreed to or signed by all the
(ii) A permanent and perpetual injunction
parties to the present dispute. Moreover, it is only restraining defendant nos 1 to 10
conditional on certain
from removing the idols of the deity and other idols
stipulations being fulfilled. Hence, the settlement from the place where
cannot be treated to be a
they were installed; from closing the way leading
binding or concluded agreement between the to the idols; or interfering
parties to the dispute. We,
in worship and darshan.
however, record our appreciation of the earnest
efforts made by the members of Defendant nos 1 to 5 are Muslim residents of
Ayodhya; defendant no 6 is the
the mediation panel in embarking on the task
entrusted by this Court. In bringing State of Uttar Pradesh; defendant no 7 is the
Deputy Commissioner of Faizabad;
together the disputants on a common platform for a
free and frank dialogue, the defendant no 8 is the Additional City Magistrate,
Faizabad; defendant no 9 is the
mediators have performed a function which needs
to be commended. We also Superintendent of Police, Faizabad; defendant no
10 is the Sunni Central Waqf
express our appreciation of the parties who
earnestly made an effort to pursue Board and defendant no 11 is the Nirmohi Akhara.

the mediation proceedings. The case of the plaintiff in Suit 1 is that, as a

resident of Ayodhya, he was
B. An overview of the suits
worshipping the idol of Lord Ram and Charan
33. Before examining the various contentions of Paduka (foot impressions) ―in that
the parties before this Court,
place of Janambhumi‖. The boundaries of the
we first record the procedural history, substantive ‗disputed place‘ as described in the
claims and reliefs prayed for in
plaint are as follows:
the pleadings of the three Suits before this Court.
―Disputed place:
Suit 1 - OOS No 1 of 1989 (Regular Suit 2 of
1950) East: Store and Chabutra of Ram Janam Bhumi
West: Parti North: Sita Rasoi South: Parti.‖
34. The suit was instituted on 13 January 1950 by
Gopal Singh Visharad, a The cause of action for Suit 1 is stated to have
arisen on 14 January 1950, when
resident of Ayodhya in his capacity as a ―follower
of Sanatan Dharm‖ seeking: the employees of the government are alleged to
have unlawfully prevented the
PART B
plaintiff ―from going inside the place‖ and
30 exercising his right of worship. It was

16
alleged that the ―State‖ adopted this action at the that the entire building represented the Janmasthan
behest of the Muslim residents was baseless. As a

PART B consequence of the dismissal of the Suit on 24

December 1885, ―the case
31
respecting the Chabutra was not entertained‖;
represented by defendant nos 1 to 5, as a result of
which the Hindus were stated (iv) The Chief Commissioner Waqf appointed
under the U.P. Muslim Waqf Act
to been deprived of their ―legitimate right of
worship‖. The plaintiff apprehended 1936 had held the mosque to be a Sunni Waqf;

that the idols, including the idol of Lord Ram, PART B

would be removed. These actions
32
were alleged to constitute a ―direct attack on the
right and title of the plaintiff‖ and (v) Muslims have always been in possession of the
mosque. This position
were stated to be an ―oppressive act‖, contrary to
law. began in 1528 and continued thereafter, and
consequently, ―Muslims are in
35. Denying the allegations contained in the plaint,
defendant nos 1 to 5 stated possession of that property … by way of an adverse
possession‖;
in their written statements that:
(vi) Namaz had been offered at Babri Masjid until
(i) The property in respect of which the case has 16 December 1949 at which
been instituted is not
point there were no idols under the central dome. If
Janmabhumi but a mosque constructed by Emperor any person had placed
Babur. The mosque
any idol inside the mosque with a mala fide intent,
was built in 1528 on the instructions of Emperor ―the degradation of the
Babur by Mir Baqi, who
mosque is evident and the accused persons are
was the Commander of Babur‘s forces, following liable to be prosecuted‖;
the conquest of the sub
(vii) Any attempt of the plaintiff or any other
continent by the Mughal emperor; person to enter the mosque to offer

(ii) The mosque was dedicated as a waqf for worship or for darshan would violate the law.
Muslims, who have a right to Proceedings under Section

worship there. Emperor Babur laid out annual 145 of the CrPC 1898 had been initiated; and
grants for the maintenance
(viii) The present suit claiming Babri Masjid as the
and expenditure of the mosque, which were place of the Janmasthan is
continued and enhanced by
without basis as there exists, for quite long, another
the Nawab of Awadh and the British Government; temple with idols of

(iii) The Suit of 1885 was a suit for declaration of Lord Ram and others, which is the actual place of
ownership by Mahant the Janmasthan of Lord

Raghubar Das only in respect of the Ramchabutra Ram.

and hence the claim

17
A written statement was filed by the defendant no constructed during the regime of Emperor Babur
6, the State, submitting that: who had laid out annual

(i) The property in suit known as Babri Masjid has grants for its maintenance and expenditure and they
been used as a mosque for were continued and

the purpose of worship by Muslims for a long enhanced by the Nawab of Awadh and the British
period and has not been Government;

used as a temple of Lord Ram; (iii) On the night of 22-23 December 1949, the
idols were surreptitiously
(ii) On the night of 22 December 1949, the idols of
Lord Ram were brought into the mosque;

surreptitiously placed inside the mosque (iv) The Muslims alone had remained in possession
imperilling public peace and of the mosque from 1528

tranquillity. On 23 December 1949, the City up to the date of the attachment of the mosque
Magistrate passed an order under Section 145 on 29

under Section 144 of CrPC 1898 which was December 1949. They had regularly offered
followed by an order of the prayers up to 21 December

same date passed by the Additional City Magistrate 1949 and Friday prayers up to 16 December 1949;
under Section 145
(v) The mosque had the character of a waqf and its
PART B ownership vested in God;

33 (vi) The plaintiff was estopped from claiming the

mosque as the Janmabhumi
attaching the disputed property. These orders were
passed to maintain of Lord Ram as the claim in the Suit of 1885
instituted by Mahant
public peace; and
Raghubar Das (described to be the plaintiff‘s
(iii) The City Magistrate appointed Shri Priya Datt predecessor) had been
Ram, Chairman, Municipal
PART B
Board, Faizabad-cum-Ayodhya as a receiver of the
property. 34

Similar written statements were filed by defendant confined only to the Ramchabutra measuring
no 8, the Additional City seventeen by twenty-one

Magistrate and defendant no 9, the Superintendent feet outside the mosque; and
of Police.
(vii) There already existed a Ram Janmasthan
Defendant no 10, the Sunni Central Waqf Board Mandir, a short distance away
filed its written statement stating:
from Babri Masjid.
(i) The building in dispute is not the Janmasthan of
Lord Ram and no idols In the plaintiff‘s replication to the written statement
of defendant nos 1 to 5, it was
were ever installed in it;
averred that the disputed site has never been used
(ii) The property in the suit was a mosque known as a mosque since 1934. It
as the Babri mosque

18
was further stated that it was ―common (ii) The Janmasthan, commonly known as
knowledge‖ that Hindus have been in Janmabhumi, is the birth-place of

continuous possession by virtue of which the claim Lord Ram and belongs to and has always been
of the defendants has ceased. managed by Nirmohi

Suit 3 - OOS no 3 of 1989 (Regular Suit no 26 of Akhara;

1959)
(iii) The Janmasthan is of ancient antiquity lying
36. The suit was instituted on 17 December 1959 within the boundaries shown
by Nirmohi Akhara through
by the letters A B C D in the sketch map appended
Mahant Jagat Das seeking a decree for the removal to the plaint within
of the receiver from the
which stands the ―temple building‖ marked by the
management and charge of the Janmabhumi temple letters E F G K P N M L
and for delivering it to the
E. The building denoted by the letters E F G H I J
plaintiff. K L E is the main

Defendant no 1 in Suit 3 is the receiver; defendant Janmabhumi temple, where the idols of Lord Ram
no 2 is the State of Uttar with Lakshman,

Pradesh; defendant no 3 is the Deputy Hanuman and Saligram have been installed. The
Commissioner, Faizabad; defendant no 4 temple building has been

is the City Magistrate, Faizabad; defendant no 5 is in the possession of Nirmohi Akhara and only
the Superintendent of Police, Hindus have been allowed to

Faizabad; defendant nos 6 to 8 are Muslim enter the temple and make offerings such as
residents of Ayodhya; defendant no 9 money, sweets, flowers and

is the Sunni Central Waqf Board and defendant no fruits. Nirmohi Akhara has been receiving these
10 is Umesh Chandra offerings through its

Pandey. pujaris;

The cause of action is stated to have arisen on 5 (iv) Nirmohi Akhara is a Panchayati Math of the
January 1950 when the Ramanandi sect of Bairagis

management and charge of the Janmabhumi temple which is a religious denomination. The customs of
was taken away by the City Nirmohi Akhara have

Magistrate and entrusted to the receiver. Nirmohi been reduced to writing by a registered deed dated
Akhara pleaded that: 19 March 1949;

PART B (v) Nirmohi Akhara owns and manages several

temples;
35
(vi) No Mohammedan has been allowed to enter
(i) There exists in Ayodhya ―since the days of the temple building since
yore‖ an ancient Math or
1934; and
Akhara of Ramanandi Bairagis called the
Nirmohis. This is a religious (vii) Acting under the provisions of Section 145 of
the CrPC 1898, the City
establishment of a public character;

19
Magistrate placed the main temple and all the (vi) There is another temple at Ayodhya which is
articles in it under the known as the Janmasthan

PART B temple of Lord Ram which has been in existence

for a long time.
36
PART B
charge of the first defendant as receiver on 5
January 1950. As a 37

consequence, the plaintiffs have been wrongfully The plaint was amended to incorporate the
deprived of the averment that on 6 December 1992

management and charge of the temple. ―the main temple was demolished by some
miscreants who had no religion, caste
37. In the written statement filed on behalf of
defendant nos 6 to 8, Muslim or creed‖.

residents of Ayodhya, it was stated that Babri In the replication filed by Nirmohi Akhara to the
Masjid was constructed by joint written statement of

Emperor Babur in 1528 and has been constituted as defendant nos 6 to 8, the existence of a separate
a waqf, entitling Muslims to Janmasthan temple was

offer prayers. Moreover, it was submitted that: denied. It was stated that the Janmasthan temple is
situated to the North of the
(i) The Suit of 1885 by Raghubar Mahant Das was
confined to Ramchabutra Janmabhumi temple.

and has been dismissed by the Sub-Judge, A written statement was filed in the suit by
Faizabad; Defendant no 9, the Sunni Central

(ii) The property of the mosque was constituted as Waqf Board denying the allegations.
a waqf under the U.P.
In the written statement filed by defendant no 10,
Muslim Waqf Act 1936; Umesh Chandra Pandey, it was

(iii) Muslims have been in continuous possession submitted:

of the mosque since 1528 as
(i) The Janmasthan is a ―holy place of worship‖
a consequence of which all the rights of the and belongs to the deity of
plaintiffs have been
Shri Ram Lalla Virajman for a long period of time.
extinguished; The temple is possessed

(iv) On the eastern and northern sides of the and owned by the deity. Lord Ram is the principal
mosque, there are Muslim deity of Ram

graves; Janmabhumi;

(v) Namaz was continuously offered in the property (ii) Nirmohi Akhara has never managed the
until 16 December 1949 Janmasthan;

and the character of the mosque will not stand (iii) In 1857, the British Government attempted to
altered if an idol has been divide the building by

installed surreptitiously; and

20
creating an inner enclosure and describing the three ‗annis‘ namely, the (i) Nirmohi; (ii)
boundary within it as a Digamber; and (iii) Nirwani Akharas.

mosque but no ―true Muslim‖ could have offered These Akharas are Panchayati Maths. Nirmohi
prayers there; Akhara owns the Ram

(iv) The presence of Kasauti pillars and the Janmasthan temple which is associated with the
carvings of Gods and Goddess on birth-place of Lord Ram. The

the pillars indicated that the place could not be used outer enclosure was owned and managed by
by a ―true Muslim‖ for Nirmohi Akhara until the

offering prayers; proceedings under Section 145 were instituted.

PART B Suit 4 - OOS 4 of 1989 (Regular Suit no 12 of

1961)
38
38. Suit 4 was instituted on 18 December 1961 by
(v) The place was virtually landlocked by a Hindu the Sunni Central Waqf
temple in which worship of
Board and nine Muslim residents of Ayodhya. It
the deity took place; has been averred that the suit

(vi) The Suit of the Nirmohi Akhara was barred by has been instituted on behalf of the entire Muslim
limitation having been community together with an

instituted in 1959, though the cause of action arose PART B

on 5 January 1950;
39
and
application under Order I Rule 8 of the CPC. As
(vii) Nirmohi Akhara did not join the proceedings amended, the following reliefs
under Section 145 nor did
have been sought in the plaint:
they file a revision against the order passed by the
Additional City ―(a) A declaration to the effect that the property
indicated by letters A B C D in the sketch map
Magistrate. attached to the plaint is public mosque commonly
known as ‗Babari Masjid‘ and that the land
In the replication filed by Nirmohi Akhara to the
adjoining the mosque shown in the sketch map by
written statement of defendant no
letters E F G H is a public Muslim graveyard as
10, there was a detailed account of the founding of specified in para 2 of the plaint may be decreed.
the denomination. Following (b) That in case in the opinion of the Court delivery
of possession is deemed to be the proper remedy, a
the tradition of Shankaracharya since the seventh decree for delivery of possession of the mosque
century CE, the practice of and graveyard in suit by removal of the idols and
other articles which the Hindus may have placed in
setting up Maths was followed by Ramanujacharya the mosque as objects of their worship be passed in
and later, by Ramanand. plaintiff‘s favour, against the defendants.

Ramanand founded a sect of Vaishnavs known as (bb) That the statutory Receiver be commanded to
‗Ramats‘, who worship Lord hand over the property in dispute described in
Schedule ‗A‘ of the Plaint by removing the
Ram. The spiritual preceptors of the Ramanandi
unauthorized structures erected thereon.‖
sect of Bairagis established

21
[Note : Prayer (bb) was inserted by an amendment Almighty and since the construction of the mosque,
to the plaint pursuant to the it has been used by the

order of the High Court dated 25 May 1995]. Muslims for offering prayers while the graveyard
has been used for burial. The
Defendant no 1 in Suit 4 is Gopal Singh Visharad;
defendant no 2 is Ram plaint alleged that outside the main building of the
mosque, Hindu worship was
Chander Dass Param Hans; defendant no 3 is
Nirmohi Akhara; defendant no 4 is being conducted at a Chabutra admeasuring 17x21
feet on which there was a
Mahant Raghunath Das; defendant no 5 is the State
of U.P.; defendant no 6 is small wooden structure in the form of a tent.

the Collector, Faizabad; defendant no 7 is the City The plaint contains a recital of the Suit of 1885 by
Magistrate, Faizabad; Mahant Raghubhar Das for

defendant no 8 is the Superintendent of Police of permission to construct a temple on the Chabutra

Faizabad; defendant no 9 is which was dismissed. The

Priyadutt Ram; defendant no 10 is the President, plaintiffs in Suit 4 contend that the Mahant sued on
Akhil Bharat Hindu Mahasabha; behalf of himself, the

defendant no 13 is Dharam Das; defendant no 17 Janmasthan and all persons interested in it, and the
is Ramesh Chandra Tripathi; decision operates as res

and defendant no 20 is Madan Mohan Gupta. judicata as the matter directly and substantially in
issue was the existence of the
The suit is based on the averment that in Ayodhya,
there is an ancient historic Babri Masjid, and the rights of the Hindus to
construct a temple on the land
mosque known commonly as Babri Masjid which
was constructed by Babur more adjoining the mosque.

PART B According to the plaintiffs, assuming without

admitting that there existed a Hindu
40
temple as alleged by the defendants on the site of
than 433 years ago following his conquest of India which the mosque was built
and the occupation of its
433 years ago by Emperor Babur, the Muslims by
territories. It has been averred that the mosque was virtue of their long exclusive
built for the use of the
and continuous possession commencing from the
Muslims in general as a place of worship and for construction of the mosque
the performance of religious
and ensuing until its desecration perfected their title
ceremonies. The main construction of the mosque by adverse possession. The
is depicted by the letters A B
PART B
C D on the plan annexed to the plaint. Adjoining
the land is a graveyard. 41

According to the plaintiffs, both the mosque and plaint then proceeds to make a reference to the
the graveyard vest in the proceedings under Section 145

22
of CrPC 1898. As a result of the order of injunction 42
in Suit 2 of 1950, Hindus have
39. In the written statement filed by Gopal Singh
been permitted to perform puja of the idols placed Visharad, the first defendant
within the mosque but Muslims
(who is also the plaintiff in Suit 1), it has been
have been prevented from entering. stated that if the Muslims were in

According to the plaintiffs, the cause of action for possession of the mosque, it ceased in 1934. The
the suit arose on 23 December Hindus claim to be in

1949 when the Hindus are alleged to have possession after 1934 and their possession is stated
wrongfully entered the mosque and to have ripened into

desecrated it by placing idols inside the mosque. adverse possession. According to the written
The injuries are claimed to be statement, no prayers were offered

continuing in nature. As against the state, the cause in the mosque since 1934. Moreover, no individual
of action is alleged to have Hindu or Mahant can be said

arisen on 29 December 1949 when the property to represent the entire Hindu community. Hindu
was attached by the City puja is stated to be continuing

Magistrate who handed over possession to the inside the structure, which is described as a temple
receiver. The receiver assumed since 1934 and admittedly

charge on 5 January 1950. since January 1950, following the order of the City
Magistrate. In an additional
The reliefs which have been claimed in the suit are
based on the above written statement, a plea has been taken that the UP
Muslim Waqf Act 1936 is
averments. Essentially, the case of the plaintiffs
proceeds on the plea that ultra vires. It has been averred that any
determination under the Act cannot
(i) The mosque was constructed by Babur 433
years prior to the suit as a operate to decide a question of title against non-
Muslims. In a subsequent written
place of public worship and has been continuously
used by Muslims for statement, it has been stated that Hindus have
worshipped the site of the
offering prayers; and
Janmabhumi since time immemorial; the Muslims
(ii) Even assuming that there was an underlying were never in possession of
temple which was
the Janmabhumi temple and, if they were in
demolished to give way for the construction of the possession, it ceased in 1934. The
mosque, the Muslims
suit is alleged to be barred by limitation.
have perfected their title by adverse possession. On
this foundation, the As regards the Suit of 1885, it has been submitted
that the plaintiff was not suing
plaintiffs claim a declaration of title and, in the
event that such a prayer is in a representative capacity and was only pursuing
his personal interest.
required, a decree for possession.
The written statement of Nirmohi Akhara denies
PART B the existence of a mosque.

23
Nirmohi Akhara states that it was unaware of any contest the suit.
suit filed by Mahant Raghubar
In the written statement filed on behalf of the tenth
Das. According to it, a mosque never existed at the defendant, Akhil Bhartiya
site and hence there was no
Hindu Mahasabha, it has been averred that upon
occasion for the Muslim community to offer India regaining independence,
prayers till 23 December 1949. It is
there is a revival of the original Hindu law as a
urged that what the property described as Babri result of which the plaintiffs cannot
mosque is and has always been
claim any legal or constitutional right. In an
PART B additional written statement, the tenth

43 defendant denies the incident of 22 December 1949

and claims that the idols
a temple of Janmabhumi with idols of Hindu Gods
installed within. According to were in existence at the place in question from time
immemorial. According to the
the written statement, the temple on Ramchabutra
had been judicially recognised written statement, the site is the birth-place of Lord
Ram and no mosque could
in the Suit of 1885. It was urged that the
Janmabhumi temple was always in the have been constructed at the birth-place.

possession of Nirmohi Akhara and none else but PART B

the Hindus were allowed to
44
enter and offer worship. The offerings are stated to
have been received by the The written statement by Abhiram Das and by
Dharam Das, who claims to be his
representative of Nirmohi Akhara. After the
attachment, only the pujaris of chela, questions the validity of the construction of a
mosque at the site of Ram
Nirmohi Akhara are claimed to have been offering
puja to the idols in the temple. Janmabhumi. According to the written statement,
the site is landlocked and
The written statement contains a denial of Muslim
worship in the structure at least surrounded by places of Hindu worship and hence
such a building cannot be a
since 1934 and it is urged that Suit 4 is barred by
limitation. In the additional valid mosque in Muslim law. The written statement
contains a denial of a valid
written statement, Nirmohi Akhara has denied that
the findings in the Suit of 1885 waqf on the ground that a waqf cannot be based on
adverse possession.
operate as res judicata. There is a denial of the
allegation that the Muslims have According to the written statement, at Ram
Janmabhumi there was an ancient
perfected their title by adverse possession.
temple tracing back to the rule of Vikramaditya
The State of Uttar Pradesh filed its written which was demolished by Mir
statement to the effect that the
Baqi. It has been averred that Ram Janmabhumi is
government is not interested in the property in indestructible as the deity is
dispute and does not propose to

24
divine and immortal. In spite of the construction of friend. The next friend of the first and second
the mosque, it has been plaintiffs is impleaded as the third

submitted, the area has continued to be in the plaintiff.

possession of the deities and no
The defendants to the suit include:
one could enter the three domed structure except
after passing through Hindu (i) Nirmohi Akhara which is the Plaintiff in Suit 3;

places of worship. The written statements filed by (ii) Sunni Central Waqf Board, the Plaintiff in Suit
the other Hindu defendants 4;

broadly follow similar lines. Replications were (iii) Hindu and Muslim residents of Ayodhya; and
filed to the written statements of
(iv) The State of Uttar Pradesh, the Collector and
the Hindu parties. Senior Superintendent of

Suit 5 – OOS no 5 of 1989 (Regular Suit no 236 of Police.

1989)
Several other Hindu entities including the All India
40. The suit was instituted on 1 July 1989 claiming Hindu Mahasabha and a Trust
the following reliefs:
described as the Sri Ram Janmabhumi Trust, are
―(A) A declaration that the entire premises of Sri parties to the Suit as is the
Rama Janma Bhumi at Ayodhya, as described and
Shia Central Board of Waqfs.
delineated in Annexure I, II and III belongs to the
plaintiff Deities. The principal averments in Suit 5 are that:
(B) A perpetual injunction against the Defendants (i) The first and second plaintiffs are juridical
prohibiting them from interfering with, or raising persons: Lord Ram is the
any objection to, or placing any obstruction in the
construction of the new Temple building at Sri presiding deity of the place and the place is itself a
Rama Janma Bhumi, Ayodhya, after demolishing symbol of worship;
and removing the existing buildings and structures
etc., situate thereat, in so far as it may be necessary (ii) The identification of Ram Janmabhumi, for the
or expedient to do so for the said purpose.‖ purpose of the plaint is

PART B based on the site plans of the building, premises

and adjacent area
45
prepared by Sri Shiv Shankar Lal, who was
This suit has been instituted in the name of appointed as Commissioner by
―Bhagwan Sri Ram Virajman at Sri
the Civil Judge at Faizabad in Suit 1 of 1950;
Ram Janmabhumi, Ayodhya also called Bhagwan
Sri Ram Lalla Virajman‖. The PART B

deity so described is the first plaintiff. The second 46

plaintiff is described as ―Asthan
(iii) The plaint contains a reference to the earlier
Sri Rama Janambhumi, Ayodhya‖. Both the suits instituted before the Civil
plaintiffs were represented by Sri
Court and that the religious ceremonies for
Deoki Nandan Agrawala, a former judge of the attending to the deities have
Allahabad High Court as next
been looked after by the receiver appointed in the
proceedings under

25
Section 145. Although seva and puja of the deity PART B
have been conducted,
47
darshan for the devotees is allowed only from
behind a barrier; (viii) The actual and continuous performance of
puja of ―an immovable deity‖ by
(iv) Alleging that offerings to the deity have been
misappropriated, it has been its devotees is not essential for its existence since
the deity represented by
stated that the devotees desired to have a new
temple constructed ―after the land is indestructible;

removing the old structure at Sri Ram Janmabhumi (ix) There was an ancient temple during the reign
at Ayodhya‖. A Deed of of Vikramaditya at Ram

Trust was constituted on 18 December 1985 for the Janmabhumi. The temple was partly destroyed and
purpose of managing an attempt was made

the estate and affairs of the Janmabhumi; to raise a mosque by Mir Baqi, a Commander of
Emperor Babur. Most of
(v) Though both the presiding deity of Lord Ram
and Ram Janmabhumi are the material utilised to construct the mosque was
obtained from the temple
claimed to be juridical persons with a distinct
personality, neither of them including its Kasauti pillars with Hindu Gods and
Goddesses carved on
was impleaded as a party to the earlier suits. As a
consequence, the them;

decrees passed in those suits will not bind the (x) The 1928 edition of the Faizabad Gazetteer
deities; records that during the course

(vi) Public records establish that Lord Ram was of his conquest in 1528, Babur destroyed the
born and manifested himself in ancient temple and on its site

human form as an incarnation of Vishnu at the a mosque was built. In 1855, there was a dispute
premises in dispute; between Hindus and

(vii) The place itself – Ram Janmasthan - is an Muslims. The gazetteer records that after the
object of worship since it dispute, an outer enclosure

personifies the divine spirit worshipped in the form was placed in front of the mosque as a consequence
of Lord Ram. Both the of which access to

deity and the place of birth thus possess a juridical the inner courtyard was prohibited to the Hindus.
character. Hindus As a result, they made

worship the spirit of the divine and not its material their offerings on a platform in the outer courtyard;
form in the shape of an
(xi) The place belongs to the deities and no valid
idol. This spirit which is worshipped is waqf was ever created or
indestructible. Representing this
could have been created;
spirit, Ram Janmabhumi as a place is worshipped
(xii) The structure which was raised upon the
as a deity and is hence
destruction of the ancient temple,
a juridical person;

26
utilising the material of the temple does not constitutes one integral complex with a single
constitute a mosque. Despite identity. The claim of the

the construction of the mosque, Ram Janmabhumi Muslims is confined to the area enclosed within the
did not cease to be in inner boundary wall,

possession of the deity which has continued to be erected after the annexation of Oudh by the British.
worshipped by devotees
The plaint contains a description of the demolition
through various symbols; of the structure of the mosque

PART B on 6 December 1992 and the developments which

have taken place thereafter
48
including the promulgation of an Ordinance and
(xiii) The building of the mosque could be accessed subsequently, a law enacted by
only by passing through the
the Parliament for acquisition of the land.
adjoining places of Hindu worship. Hence, at Ram
Janmabhumi, the PART B

worship of the deities has continued through the 49

ages;
41. In the written statement filed by Nirmohi
(xiv) No prayers have been offered in the mosque Akhara, it has been stated that:
after 1934. During the night
(i) The idol of Lord Ram has been installed not at
intervening 22-23 December 1949, idols of Lord Ram Janmabhumi but in
Ram were installed with
the Ram Janmabhumi temple. Nirmohi Akhara has
due ceremony under the central dome. At that instituted a suit
stage, acting on an FIR,
seeking charge and management of Ram
proceedings were initiated by the Additional City Janmabhumi temple;
Magistrate under Section
(ii) While the birth-place of Lord Ram is not in
145 of the CrPC and a preliminary order was dispute, it is the Ram
passed on 29 December
Janmabhumi temple which is in dispute. The
1949. A receiver was appointed, in spite of which Muslims claim it to be a
the possession of the
mosque while Nirmohi Akhara claims it to be a
plaintiff deities was not disturbed; temple under its charge

(xv) The plaintiffs, were not a party to any prior and management. Ram Janmabhumi temple is
litigation and are hence not situated at ―Asthan Ram

bound by the outcome of the previous proceedings; Janmabhumi‖ (the birth-place of Lord Ram),
and Mohalla Ram Kot at

(xvi) The Ram Janmabhumi at Ayodhya which Ayodhya;

contains, besides the presiding
(iii) Nirmohi Akhara is the Shebait of the idol of
deity, other idols and deities along with its Lord Ram installed in the
appertaining properties
temple in dispute and has the exclusive right to
repair and reconstruct the

27
temple, if necessary; and (v) There exists another temple known as the
Janmasthan temple situated at
(iv) ―Ram Janmabhumi Asthan‖ is not a juridical
person. The plaintiffs of suit 5 a distance of less than one hundred yards from
Babri Masjid;
have no real title to sue. The entire premises belong
to Nirmohi Akhara, (vi) The mosque was not constructed on the site of
an existing temple or upon
the answering defendant. Hence, according to the
written statement the its destruction;

plaintiffs have no right to seek a declaration. (vii) During the regime of Emperor Babur the land
belonged to the State and
According to the written statement of the Sunni
Central Waqf Board: the mosque was constructed on vacant land which
did not belong to any
(i) Neither the first nor the second plaintiffs are
juridical persons; person;

(ii) There is no presiding deity of Lord Ram at the (viii) The structure has always been used as a
place in dispute; mosque ever since its

(iii) The idols were surreptitiously placed inside the construction during the regime of Emperor Babur,
mosque on the night of 22 who was a Sunni

23 December 1949. There is neither any presiding Muslim;

deity nor a Janmasthan;
(ix) The possession of Muslims was uninterrupted
(iv) The Suit of 1885 was instituted by Mahant and continuous since the
Raghubar Das in his capacity
construction of the mosque, until 22 December
as Mahant of the Janmasthan of Ayodhya seeking 1949. Therefore, any
permission to establish
alleged right to the contrary is deemed to have been
PART B extinguished by

50 adverse possession;

a temple over a platform or Chabutra. The mosque (x) Prayers were offered in the mosque five times
was depicted in the site every day, regularly until 22

plan on the western side of the Chabutra. The suit December 1949 and Friday prayers were offered
was instituted on behalf until 16 December 1949;

of other Mahants and Hindus of Ayodhya and PART B

Faizabad. The suit was
51
dismissed. The first and second appeals were also
rejected. Since the (xi) On 22-23 December 1949, some Bairagis
forcibly entered into the mosque
claim in the earlier suit was confined only to the
Chabutra admeasuring and placed an idol below the central dome. This
came to the knowledge of
seventeen by twenty-one feet outside the mosque,
the claim in the present Muslims who attended the mosque for prayers on
23 December 1949 after
suit is barred;

28
which proceedings were initiated under Section 52
145 of the CrPC 1898. The
denied the claim of the Hindus to perform puja in
possession of the building has remained with the the mosque. Hence, the
receiver from 5 January
suit is barred by limitation;
1950;
(xviii) The subject matter of the suit is property
(xii) The third plaintiff in Suit 5 could have got registered as a waqf which is
himself impleaded as a party to
maintained by the Sunni Central Waqf Board under
the suit instituted by the Sunni Central Waqf Section 30 of the U P
Board. Having failed to do so
Muslim Waqf Act 1960, shown as such in the
the third plaintiff cannot maintain Suit 5 as the next revenue records; and
friend of the deities;
(xix) Archaeological experts seem to indicate that
(xiii) The third plaintiff has never been associated there appears to be no sign of
with the management and
human habitation predating to 700 B.C. nor is there
puja of the idols and cannot claim himself to be the any evidence that a
next friend of Lord
fort, palace or old temple existed at the site of
Ram; Babri Masjid.

(xiv) There is no presiding deity as represented by In the written statement filed on behalf of
the first plaintiff and it is defendant no 5 who is a Muslim

incorrect to say that the footsteps (―charan‖) and resident of Ayodhya, it has been submitted that:
other structures constitute
(i) The premises have always been a mosque since
one integral complex with a single identity; the construction in the

(xv) The concept of a mosque envisages that the sixteenth century and have been used only for the
entire area below as well as purposes of offering

above the land remains dedicated to God. Hence, it namaz;

is not merely the
(ii) The existence of Kasauti pillars is denied. No
structure of the mosque alone but also the land on one else except the Muslims
which it stands which is
worshipped in Babri Masjid. Namaz was offered in
dedicated to the Almighty, Allah; the mosque since its

(xvi) The site in question has no connection with construction until 22 December 1949;
the place of birth of Lord Ram
(iii) Babri Masjid was not constructed on the site of
and has no significance to the alleged ―Asthan‖ of a temple which was
Ram Janmabhumi;
demolished at the behest of Emperor Babur;
(xvii) The cause of action for the suit is deemed to
have accrued in December (iii) The Ram Janmasthan Mandir which exists in
Ayodhya is distinct and
1949 when the property was attached and when the
Muslims categorically separate from the premises in question; and

PART B

29
(iv) The findings in the Suit of 1885 operate as res area admeasuring seventeen by twenty-one feet
judicata. was partitioned by

An additional written statement was filed on behalf naming it as Ramchabutra;

of defendant nos 4 and 5 in
(ii) On 22 December 1949, the Janmasthan claim
order to deal with the amendments to the plaint was shifted from
consequent upon the demolition
Ramchabutra to a place inside the mosque beneath
PART B the main dome

53 of the Babri Masjid;

of the Babri Masjid on 6 December 1992. PART B

The written statement of defendant no 6, a Muslim 54

resident of Ayodhya, adopts
(iii) Prior to 1855, ―the undisputed Ram
the written statement of defendant no 5. The Janmasthan was the old
written statement of defendant no
Janmasthan Sita Rasoi Mandir across the street on
11, the President of the All India Hindu a mound facing
Mahasabha, has submitted to a decree in
the Babri Masjid‖;
terms as sought in the plaint. The written
statements filed by the Hindu and (iv) According to defendant no 24, the following
three sites are now
Muslim defendants follow broadly the same
respective lines. believed to be probable places of the birth of Lord
Ram, namely:
42. A written statement has been filed by defendant
no 24, Prince Anjum (a) Inside the Babri Masjid beneath the main dome
since 1949;
Qader stating thus:
(b) At Ramchabutra in the courtyard of the Babri
―(a) The spot being presently claimed by the Masjid since
plaintiff is being made known as Ram Janam
Bhoomi only since 22.12.1949. 1855; and

(b) The Ram Chabutra, in the court-yard outside (c) At the old Ram Janmasthan Mandir where Sita
the Babri Masjid structure, is being known as Ram Rasoi is also
Janam Bhoomi only since 1885.
situated.
(c) The Janamsthan site Rasoi Mandir, facing the
(v) While the 1928 edition of the Faizabad
Babri Masjid across the street, is traditionally
Gazetteer published by the
known as Ramjanambhumi since time
immemorial.‖ British Government contains a narration of
Emperor Babur halting at
According to defendant no 24:
Ayodhya for a week, destroying the ancient temple
(i) In 1855, a spot outside the structure of Babri
and building the
Masjid in a corner of
Babri Masjid with the materials of the destroyed
the courtyard was claimed as the Janmasthan. At
temple, it is a fact of
that stage, an

30
history that Babur never came to Ayodhya. The (ii) On the night between 22-23 December 1949,
Babur-Nama, a some persons illegally

memoir of Emperor Babur has made no mention of trespassed into the mosque as a result of which an
visiting Ayodhya, FIR was lodged

destroying the temple or of building a mosque. and proceedings under Section 145 were initiated.
Defendant no 24 A receiver was

states that: appointed and the status quo was directed to be

continued during
―However, after all said and done, it is most
respectfully submitted that if only this claim is the pendency of the civil suits before the Civil
proved that a Mandir was demolished and Babri Court.
Masjid was built on the Mandir land, this defendant
and all other Muslims will gladly demolish and Heads of issues in the Suits
shift the mosque, and return the land for building of
43. Justice Sudhir Agarwal observed that the issues
the Mandir thereon.‖
in the four suits can be
(vi) Babri Masjid was built by Mir Baqi on vacant
broadly classified under the following heads :
land and not on the
―(A) Notice under Section 80 C.P.C. (B)
ruins of a pre-existing temple. Since Mir Baqi was
Religious denomination (C) Res judicata, waiver
a Shia Muslim,
and estoppel (D) Waqf Act 13 of 1936 etc. (E)
PART B Miscellaneous issues like representative nature of
suit, Trust, Section 91 C.P.C., non joinder of
55 parties, valuation/ insufficient Court fee/under
valuation and special costs.
the ‗mutawalliship‘ devolved upon his descendants
since inception PART C

in 1528 without a break. However, both Shias and 56

Sunnis offered
(F) Person and period- who and when constructed
namaz in Babri Masjid. The Sunni Muslims were the disputed building (G) Deities, their status,
permitted by the rights etc. (H) Limitation (I) Possession/adverse
possession (J) Site as birthplace, existence of
Shia mutawalli to perform their own daily Jamaat temple and demolition if any. (K) Character of
in the Masjid since Mosque (L) Identity of the property (M) Bar of
Specific Relief Act (N) Others, if any.‖
1925, when the Shia population in Ayodhya
dwindled. The Sunni C. Evidence: a bird‘s eye view

Imam of Babri Masjid led the last namaz on 22 44. A wealth of material emerged before the court
December 1949. during the course of the

The written statement of defendant no 25 states trial. The judgment of Justice Sudhir Agarwal in
that: the High Court copiously

(i) Babri Masjid has always been in use as a tabulates the documentary evidence13. The
mosque in which the documentary exhibits of the parties

namaz was offered since its construction, until 22 during the course of trial comprised of 533 exhibits
December 1949; of which a brief categorisation

and

31
is: (iv) Translations of inscriptions on pillars;

1. Plaintiffs (Suit-1) – Exhibits No. 1 to 34 (v) Reports of Archaeological excavation;

(Total 34)
(vi) Photographs prior to demolition; and
2. Plaintiffs (Suit-3) – Exhibits No. 1 to 21
(Total 21) (vii) Details of artefacts found at the disputed site.

3. Plaintiffs (Suit-4) – Exhibits No. 1 to 128 The judgment of Justice Sudhir Agarwal in the
(Total 128) High Court tabulates the oral

4. Plaintiffs (Suit-5) – Exhibits No. 1 to 132 evidence in the four suits under the following
(Total 132) heads:

5. Defendants (Suit-1) – Exhibits No. A1 to A72 ―274. (1) Oral Depositions : Parties to these suits
(Total 73) produced 88 witnesses, who deposed on one or the
other subject. Broadly, these witnesses are
6. Defendants (Suit-4) – (i) Exhibits No. A1 to A16 categorized as under: 275. (a) Witnesses produced
(Total 16) in Suit-4 by Plaintiff : (I) Witness of facts : 1.
P.W 1 Sri Mohd. Hashim 2. PW 2 Hazi Mahboob
(ii) Exhibits No. M1 to M7 (Total 7) Ahmed 3. PW 3 Farooq Ahmad 4. PW 4 Mohd.
Yasin 5. PW 5 Sri Abdul Rehman 6. PW 6
(iii) Exhibits No. B1 to B16 (Total 16)
Mohd. Yunus Siddiqui 7. PW 7 Sri Hashmat
(iv) Exhibits No. J1 to J31 (Total 32) Ullah Ansari 8. PW 8 Sri Abdul Aziz

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

(vi) Exhibit No. V1 (Total 1) 58

(vii) Exhibits No. Q1 to Q6 (Total 6) 9. PW 9 Syeed Akhlak Ahmad 10. PW 10 Mohd.

Idris 11. PW11 Mohd. Burhanuddin 12. PW 12
13 2010 (ADJ), Vol. I, Ram Shanker Upadhyay 13. PW 13 Suresh
pages 624-662 Chandra Mishra 14. PW 14 Jalil Ahmad 15. PW
21 Dr. M. Hashim Qidwai 16. PW 23 Mohd
PART C Qasim Ansari 17. PW 25 Mohd. Sibte Naqvi
(II) Expert Witnesses (Historians) 18. PW 15
57
Sushil Srivastava 19. PW 18 Prof. Suvira Jaiswal
7. Defendants (Suit-5) – (i) Exhibits No. C1 to 20. PW 20 Prof. Shirin Musavi
C11 (Total 11)
(III) Expert Witnesses (Archaeologists) 21. PW
(ii) Exhibits No. D1 to D38 (Total 38) 16 Prof. Suraj Bhan 22. PW 24 Prof. D. Mandal
23. PW 27 Dr. Shereen F. Ratnagar 24. PW 28
(iii) Exhibits No. E1 to E8 (Total 12) 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

Grand (IV) Private Commissioner 29. PW 17 Zafar Ali

Total - 533 Siddiqui

These exhibits broadly comprise of : (V) Expert Witnesses (Religious matters)

30. PW 19 Maulana Atiq Ahmad 31. PW 22
(i) Religious texts; Mohd. Khalid Naqui 32. PW 26 Kalbe Jawed
(ii) Travelogues; 276. (b) Witnesses produced in Suit-5 by Plaintiff :
(iii) Gazetteers;

32
(I) Witness of facts : 1. OPW 1 Mahant Paramhans Yadav 10. DW 3/11 Sri Bhanu Pratap Singh 11.
Ram Chandra Das 2. OPW 2 Sri D.N. Agarwal 3. DW 3/12 Sri Ram Akshaibar Pandey 12. DW 3/13
OPW 4 Harihar Prasad Tewari Mahant Ram Subhag Shashtri 13. DW 3/15
Narendra Bahadur Singh 14. DW 3/16 Sri Shiv
PART C Bhikh Singh 15. DW 3/17 Sri Mata Badal Tewari
16. DW 3/18 Sri Acharya Mahant Bansidhar Das
59
@ Uriya Baba 17. DW 3/19 Sri Ram Milan Singh
4. OPW 5 Ram Nath Mishra alias Banarsi Panda 18. DW 3/20 Mahant Raja Ramchandr-acharya
5. OPW 6 Hausila Prasad Tripathit 6. OPW 7 Sri
(II) Others : 19. DW 3/10 Sri Pateshwari Dutt
Ram Surat Tewari 7. OPW 8 Ashok Chandra
Pandey 20. DW 3/14 Jagad Guru
Chatterjee 8. OPW 12 Kaushal Kishor Misra 9.
Ramanandacharya Swami Haryacharya
OPW 13 Narad Saran
279. (e) Witnesses produced by Defendant 2/1 in
(II) Expert Witnesses (Archaeologists) 10. OPW 3
Suit-4 :
Dr. S.P. Gupta 11. OPW 14 Dr. Rakesh Tewari
12. OPW 17 Dr. R. Nagaswami 13. OPW 18 Sri (I) Witness of facts : 1. DW 2/1-3 Mahant Ram
Arun Kumar Sharma 14. OPW 19 Sri Rakesh Vilas Das Vedanti
Dutta Trivedi
(II) Others : 2. DW 2/1-1 Sri Rajendra. 3. DW
(III) Expert Witness (Epigraphist and Historian) 2/1-2 Sri Ram Saran Srivastava
15. OPW 9 Dr. T.P. Verma
280. (f) Witnesses produced by Defendant 13/1 in
(IV) Expert Witnesses (Epigraphist) 16. OPW 10 Suit-4 : (I) Expert Witness (Historians) : 1. DW
Dr. Voluvyl Vyasarayasastri Ramesh 17. OPW 15 13/1-3 Dr. Bishan Bahadur (II) Others : 2. DW
Dr. M.N. Katti 13/1-1 Mahant Dharam Das

(V) Expert Witnesses (Historians) 18. OPW 11 PART C

Dr. Satish Chandra Mittal
61
(VI) Expert Witnesses (Religious matters) 19.
OPW 16 Jagadguru Ramanandacharya Swami Ram 3. DW 13/1-2 Mahant Awadh Bihari Das Pathak
Bhadracharya
281. (g) Witnesses produced by Defendant 17 in
277. (c) Witnesses produced in Suit-1 by Plaintiff : Suit-4 : (I) Witness of facts : 1. DW 17/1 Sri
Ramesh Chandra Tripathi
(I) Witness of facts : 1. DW 1/1 Sri Rajendra
Singh 2. DW 1/2 Sri Krishna Chandra Singh 3. 282. (h) Witnesses produced by Defendant 20 in
DW 1/3 Sri Sahdeo Prasad Dubey Suit-4 :

278. (d) Witnesses produced in Suit-3 of 1989 by (I) Witness of facts : 1. DW 20/1 Sri Shashi Kant
Plaintiff: Rungta 2. DW 20/4 Sri M.M. Gupta (II) Expert
Witnesses (Religious matters) 3. DW 20/2 Swami
(I) Witness of facts : Avimukteshwaran and Saraswati 4. DW 20/3
Bramchari Ram Rakshanand
PART C
(III) Expert Witness (Archaeologist) 5. DW 20/5
60
Sri Jayanti Prasad Srivastava
1. DW 3/1 Mahant Bhaskar Das 2. DW 3/2 Sri
283. (i) Witnesses produced by Defendant 6/1 in
Raja Ram Pandey 3. DW 3/3 Sri Satya Narain
Suit-3 : (I) Expert Witness (Archaeologist) : 1.
Tripathi 4. DW 3/4 Mahant Shiv Saran Das 5.
DW 6/1-2 Sri Mohd. Abid
DW 3/5 Sri Raghunath Prasad Pandey 6. DW 3/6
Sri Sita Ram Yadav 7. DW 3/7 Mahant Ramji (II) Others : 2. DW 6/1-1 Sri Haji Mahboob
Das 8. DW 3/8 Pt. Shyam Sundar Mishra @ Ahmad.‖
Barkau Mahraj 9. DW 3/9 Sri Ram Ashrey

33
Statements under Order X Rule 2 CPC site of Babri Masjid was the place of birth of Lord
Rama. It is also denied that there was any Ram
45. During the course of the hearing of the suit, the Janam Bhoomi Temple at the site of Babri Masjid
Trial Court recorded the at any time whatsoever. The existence of Nirmohi
Akhara from the second half of Nineteenth Century
statements of parties and their pleaders under the
onwards is also not disputed. It is however, denied
provisions of Order X Rule 2 of
and disputed that Nirmohi Akhara was in
the Code of Civil Procedure 190814 (―CPC‖). (a) shall, with a view to elucidating matters in
controversy in the suit, examine, orally such of the
142. Oral examination parties to the suit appearing in person or present in
of party, or companion of party- (1) At the first Court, as it deems fit; and (b) may orally
hearing of the suit, the Court- examine any person, able to answer any material
question relating to the suit, by whom any party
PART C appearing in person or present in Court or his
pleader is accompanied. (2) At any subsequent
62
hearing, the Court may orally examine any party
On 8 August 1962, it was stated on behalf of the appearing in person or present in Court, or any
Sunni Central Waqf Board that: person, able to answer any material question
relating to the suit, by whom such party or his
―the property in suit is the property dedicated to pleader is accompanied. (3) The Court may, if it
Almighty God and is a mosque for the use of the thinks fit, put in the course of an examination under
entire Muslim community at large…‖ this rule questions suggested by either party.

On 28 August 1963, it was stated by the Sunni PART D

Central Waqf Board that in the
63
alternative even if the defendants had any right in
the property, it stood existence and specially in Ayodhya in 16th Century
A.D. or in 1528 A.D. and it is also denied that any
extinguished by a lapse of time and the plaintiff idols were there in the building of the Babri Masjid
(Sunni Central Waqf Board) had up to 22nd December, 1949.‖

acquired title by adverse possession. Similar statements were made on behalf of other
counsel representing the
On 11 January 1996, the statement of Mr Zafaryab
Jilani, learned Senior Counsel Muslim parties. There is, in other words, no dispute
before this Court in regard to
appearing for the Sunni Central Waqf Board was
recorded to the effect that: the faith and belief of the Hindus that the birth of
Lord Ram is ascribed to have
―That the mosque was situate on a Nazul Plot No.
583 of the Khasra of 1931 of Mohalla Kot taken place at Ayodhya, as described in Valmiki‘s
Ramchandra known as Ramkot at Ayodhya.‖ Ramayan. What is being

On 22 April 2009, the following statement of Mr disputed is whether the disputed site below the
Zafaryab Jilani, learned Senior central dome of the Babri Masjid

Counsel was recorded under Order X Rule 2 of the is the place of birth of Lord Ram. The Muslim
CPC: parties have expressly denied the

―For the purpose of this case there is no dispute existence of a Ram Janmabhumi temple at the site
about the faith of Hindu devotees of Lord Rama of Babri Masjid. With this
regarding the birth of Lord Rama at Ayodhya as
described in Balmiki Ramayana or as existing background, it becomes necessary to advert to the
today. It is, however, disputed and denied that the salient aspects of the

34
documentary evidence which has emerged on the by the Hindus in the inner courtyard. The evidence
record. is as follows:

D. The aftermath of 1856-7 (i) On 28 November 1858 a report was submitted

by Sheetal Dubey who was
D.1 Response to the wall
the Thanedar, Oudh15. The report spoke of an
46. In 1856-7, a communal riot took place. incident during which
Historical accounts indicate that the
Hawan and Puja was organised inside the mosque
conflagration had its focus at Hanumangarhi and by a Nihang Sikh who
the Babri mosque. Some of
had erected a religious symbol. The report states:
those accounts indicate that prior to the incident,
Muslims and Hindus alike had ―Today Mr. Nihang Singh Faqir Khalsa resident
of Punjab, organized Hawan and Puja of Guru
access to the area of the mosque for the purpose of Gobind Singh and erected a symbol of Sri
worship. The incident was Bhagwan, within the premises of the Masjid. At the
time of pitching the symbol, 25 sikhs were posted
proximate in time with the transfer of power to the
there for security. Deemed necessary so requested.
colonial government. The
May your regime progress. Pleasure.‖
incident led to the setting up of a railing made of a
(ii) An application was submitted by Syed
grill-brick wall outside the
Mohammad Khateeb, Muazzim of
mosque. The object of this would have been to
the Masjid16. The subject of the application was
maintain peace and due order at
the report of the Thanedar
the site. The railing provided the genesis of the
Oudh. The application stated that ‗Mahant Nihang
bifurcation of the inner courtyard
Singh Faqir‘ was
(in which the structure of the mosque was situated)
creating a riot on ―Janam Sthan Masjid situated in
and the outer courtyard
Oudh‖. The application
PART D
stated:
64
―Near Mehrab and Mimber, he has constructed,
comprising the remaining area. The setting up of inside the case, an earth Chabutra measuring about
the railing was not a four fingers by filling it with Kankars (concrete).
Lighting arrangement has been made…and after
determination of proprietary rights over the inner raising the height of Chabutra about 11/4 yards a
and outer courtyards, the picture of idol has been placed and after digging
15 Exhibit 19 16 Exhibit 20
measure having been adopted to maintain peace
between the two communities. PART D

This section of the judgment traces the 65

documentary evidence on the aftermath
a pit near it, the Munder wall has been made Pucca.
of 1856-7 at the disputed site, the continuing Fire has been lit there for light and Puja and Hom is
skirmishes in the inner and outer continuing there. In whole of this Masjid ‗Ram
Ram‘ has been written with coal. Kindly, do
courtyards, the proceedings between various justice. It is an open tyranny and high handedness
disputants and the claim to worship of the Hindus on Muslims and not that of Hindus.
Previously the symbol of Janamsthan had been
there for hundreds of years and Hindus did Puja.

35
Because of conspiracy of Shiv Ghulam Thandedar 66
Oudh Government, the Bairagis constructed
overnight a Chabutra up to height of one ‗Balisht‘ respect of village Ramkot until a decision was
until the orders of injunction were issued. At that taken on whether the land is
time the Deputy Commissioner suspended the
Nazul land19;
Thanedar and fine was imposed on Bairagis. Now
the Chabootra has been raised to about 11/4 yards. (vi) On 5 November 1860, an application was made
Thus sheer high-handedness has been proved. to the Deputy
Therefore, it is requested that Murtaza Khan
Kotwal City may be ordered that he himself visit Commissioner for the removal of the Chabutra
the spot and inspect the new constructions and get which had been
them demolished (sic) and oust the Hindus from
there; the symbol and the idol may be removed constructed ―within Babri Masjid Oudh‖20. The
from there and writing on the walls be washed.‖ grievance in the application

The contents of the application indicate that by this and the relief sought is indicated in this extract:
time a platform had been
―Besides, when the Moazzin recites Azaan, the
constructed inside the mosque in which an idol had opposite party begins to blow conch
been placed. A fire had been (Shankh/Naqoos). This has never happened before.
I would pray that your honour is the Judge for both
lit and arrangements were made for puja. the parties. The opposite party should be restrained
Evidently, the railing did not prevent from his unlawful act and after proper inquiry the
newly constructed Chabootra which had never
access to the inner courtyard or to the precincts of existed, may kindly be demolished and a bond be
the mosque. got executed from the opposite party to the effect
that he will not unlawfully and illegally interfere in
(iii) A report was submitted by the Thanedar on 1
the Masjid property and will not blow conch
December 1858 ―for
(Shankh/Naqoos) at the time of Azaan.‖
summoning Nihang Singh Faqir who is residing
(vii) The application would indicate that the namaz
within the Masjid Janam
was at the stage being
Sthan17. The report stated that he had taken a
performed in the mosque. The Azaan of the
summons ―to the said Faqir‖
Moazzin was met with the
and he was admonished, in spite of which he
blowing of conch shells by the Hindus. A
continued to insist that ―every
contentious situation was arising.
place belonged to Nirankar‖;
Eventually, the Nihang Sikh was evicted from the
(iv) A report was submitted by the Thanedar on 6 site and a record was
December 1858 indicating
maintained;
service of the summons18;
(viii) In or about 1877, another door to the outer
(v) There was an application dated 9 April 1860 of courtyard was allowed to be
Mohammadi Shah, resident
opened by the administration on the northern site,
of Mohalla Ramkot seeking a postponement of the in addition to the
grant of a lease in
existing door on the east. The Deputy
17 Exhibit 21 18 Exhibit Commissioner declined to entertain
22
a complaint against the opening made in the wall of
PART D the Janmasthan21. The

36
order of the Deputy Commissioner records: document has not been disputed by the plaintiff in
the suit or of it having
19 Exhibit 23 20 Exhibit
31 21 Exhibit 15 been written by a person whose identity was not
disputed. The learned
PART D
Judge held that the document contains admissions
67 which prove that

―A doorway has recently been opened in the wall Hindus had continuously offered prayers inside the
of the Janum-Asthan not at all in Baber‘s mosque, disputed building 22
but in the wall which in front is divided from the Exhibit 20
mosque by a railing. This opening was necessary to
give a separate route on fair days to visitors to the PART D
Janum-Asthan. There was one opening only, so the
crush (sic rush) was very great and life was 68
endangered. I marked out the spot for the opening
including the inner courtyard and at Ramchabutra
myself so there is no need to depute any Europe
and Sita Rasoi in the
officer. This petition is merely an attempt to annoy
the Hindu by making it dependent on the pleasure outer courtyard. However, during the course of the
of the mosque people to open or close the 2nd door proceedings Mr Mohd.
in which the Mohammedans can have no interest.‖
(Emphasis supplied) Nizamuddin Pasha, learned counsel for the
plaintiffs in Suit 4 has
This was accepted by the Commissioner while
dismissing an appeal on 13 challenged the translation of the exhibit;

December 1877 holding: (x) Mohd Asghar instituted Suit 374/943 of 188223
against Raghubar Das,
―As the door in question has opened by the
Deputy Commissioner in the interests of the public Mahant, Nirmohi Akhara claiming rent for use of
safety, I decline to interfere. Appeal dismissed.‖ the Chabutra and Takht

(ix) Justice Agarwal has alluded to the above near the door of Babri Masjid and for organizing
documentary evidence including the Kartik Mela on the

in particular, the application of the Moazzin dated occasion of Ram Navami in 1288 Fasli. The Sub-
30 November 1858.22 Judge, Faizabad

The application complained of the construction of a dismissed the suit on 18 June 1883;
Chabutra near the
(xi) The construction of a railing in 1856-7 to
mihrab and mimbar on which a picture of an idol provide a measure of separation
had been placed. The
between the inner and outer courtyards led to the
complaint refers to the worship which was being construction of a
conducted by lighting a
platform by the Hindus in close proximity to the
fire and conducting a puja. The letter notes that railing, in the outer
previously the symbol of
courtyard. The platform, called Ramchabutra,
the Janmasthan was in existence for hundreds of became a place of worship
years and Hindus had
for the Hindus;
performed puja. Justice Agarwal has noted that the
genuineness of this

37
(xii) On 29 January 1885, a suit was instituted in Masjid and above the door, the word ‗Allah‘ was
the court of the Munsif, inscribed. Babur was also

Faizabad by Mahant Raghubar Das, describing stated to have declared a grant for its maintenance.
himself as ―Mahant Mohd Asghar pleaded

Janmasthan at Ayodhya‖. The sole defendant was that no permission had been granted for the use of
the Secretary of State the land in the

for India in Council24. The relief which was sought compound of the mosque. It was averred that there
in the suit was an was no Chabutra from

injunction restraining the defendant from the date of the construction of the mosque until
obstructing the construction of a 1856 and it was only

temple over the Chabutra admeasuring 17x21 feet. constructed in 1857. The prayer for the
The plaint stated that construction of a temple was

the Janmasthan at Ayodhya is a place of religious opposed; and

importance and the
The above suit was dismissed by the Sub-Judge on
plaintiff is a Mahant of the place. Charan Paduka 24 December 1885.
was affixed on the
The Trial Court held that:
Chabutra and a small temple built next to it was
worshipped. The plaintiff (a) The Chabutra was in possession of the plaintiff,
which had not been
23 Exhibit 24 24 The
certified copy of the plaint is Exhibit A-22 in Suit 1 disputed by the second defendant;

PART D (b) The area was divided by a railing wall

separating the domed
69
structure from the outer courtyard where the
stated that in April 1883, the Deputy Chabutra existed to
Commissioner, Faizabad acting on
prevent any dispute between Hindus and Muslims;
the objection of the Muslims, obstructed the
construction of a temple. A (c) The erection of a railing was necessitated due
to the riot in 1885
map was appended with the plaint showing the
three domed structure between Hindus and Muslims;

described as ―Masjid‖ within a boundary railing. PART D

The map appended to the
70
plaint indicated two entrances to the outer
(d) The divide was made to so that Muslims could
courtyard on the Northern and
offer prayers inside
Eastern sides. Mohd Asghar as Mutawalli of the
and the Hindus outside;
mosque was impleaded
(e) Since the area to visit the mosque and the
as second defendant to the suit. He filed a written
temple was the same but
statement on 22
the place where the Hindus offered worship was in
December 1885 stating that Babur had created a
their possession,
waqf by constructing a

38
there could be no dispute about their ownership; 71
and
the plaintiff was the proprietor of the land in
(f) Though the person who was the owner and in question; and (ii) it was inappropriate
possession is entitled
to allow the parties to disturb the status quo
to make construction, grant of permission to especially when a mosque had been
construct a temple in
in existence for nearly 350 years. The Judicial
such close proximity to a mosque may lead to a Commissioner held:
serious dispute
―The matter is simply that the Hindus of Ajodhya
between Hindus and Muslims and create a law and want to create a new temple or marble baldacchino
order problem. over the supposed holy spot in Ajodhya said to be
the birthplace of Shri Ram Chandar. Now this spot
The suit was dismissed on this ground. is situated within the precinct of the grounds
surrounding a mosque erected some 350 years ago
Against the decree of the Trial Court, an appeal
owing to the bigotry and tyranny of the Emperor
was filed by Mahant Raghubar
Babur, who purposely chose this holy spot
Das while cross-objections were filed by Mohd according to Hindu legend as the site of his
Asghar. The District Judge by a mosque.

judgment dated 18/26 March 1886 dismissed the The Hindus seem to have got very limited rights of
appeal of the plaintiff. The access to certain spots within the precincts
adjoining the mosque and they have for a series of
District Judge held that it was ―most unfortunate‖ years been persistently trying to increase those
that the Masjid should have rights and to erect buildings on two spots in the
enclosure:
been built on the land especially held sacred by the
Hindus but since the (a) Sita ki Rasoi

construction had been made 358 years earlier, it (b) Ram Chandar ki Janam Bhumi. The Executive
was too late in the day to authorities have persistently refused these
encroachments and absolutely forbid any alteration
reverse the process. The suit was dismissed on the of the ‗status quo‘.
ground that there was no
I think this is a very wise and proper procedure on
injury which could give a right of action to the their part and I am further of opinion that the Civil
plaintiff. On the cross-objections of Courts have properly dismissed the Plaintiff‘s
claim.‖
Mohd Asghar, the District Judge held that the
finding of the Trial Court that the The issue as to whether the findings in the suit will
operate as res judicata will be
plaintiff was the owner of the land in dispute was
redundant and should be dealt with in a subsequent segment of the
judgment.
expunged.
The conflagration which took place in 1855-56
The second appeal was dismissed by the Judicial
resulted in a brick wall and railing
Commissioner of Oudh on 1
being put up outside the mosque. This divided the
November 1886 on the ground that (i) there was
courtyard into an inner portion
nothing on record to show that
which lay within the railing and the outer portion
PART D
beyond it. Situated in the outer

39
portion were places worshipped by the Hindus, documentary evidence as indicative of the status of
among them being Ramchabutra the mosque and of the

and Sita Rasoi. Two entrance gates (on the north performance of namaz).
and east) provided access to
48. A series of incidents took place between March
the outer courtyard. Entry to the mosque was and December 1949. On
through the access points to the
19 March 1949, a deed was executed by the
PART D Panches of Nirmohi Akhara

72 PART D

outer courtyard. 73

D.2 Period between 1934-1949 purportedly to reduce into writing the customs of
the Akhara. This document25
47. In 1934, there was another communal incident
in the course of which included the following provision in regard to ―the
temple of Janmabhoomi‖ of
damage was sustained to the mosque which was
subsequently restored. The which the management was claimed to vest in the
Akhara:
documentary evidence which has been brought on
record shows that : ―Temple of Janam Bhoomi is situate in Mohalla
Ram Ghat of City, Ayodhya which is under the
(i) The colonial administration sanctioned the work Baithak of this Akhara and its whole management
of repair and renovation of is trust upon to this Akhara. It stands in name of
Mahant of Akhara as Mahant and Manager. This is
the damaged structure of the mosque;
the best well reputed, moorty of worship temple of
(ii) A fine was imposed on the Hindus for the Ayodhya. Being the birthplace of Lord Rama, it is
damage which was caused to the main temple of Ayodhya. The deity of Shri
Ram Lalaji is installed there and there are other
the mosque; deities also.‖

(iii) The work of restoration was entrusted to a 49. During the course of his arguments, Dr Rajeev
Muslim contractor with whom Dhavan, learned Senior

there was an exchange of correspondence over the Counsel for the plaintiffs in Suit 4 urged that the
payment of unpaid communications exchanged

bills and for verification of work done; between the officials of the State of Uttar Pradesh
demonstrate that they had
(iv) This was a claim by the Pesh Imam of the
mosque over the payment of the prior information about a carefully planned course
of action of placing idols inside
arrears of salary with the Mutawalli; and
the mosque which led to the desecration of the
(v) Upon the work of repair, the administration mosque. Despite this, it has been
permitted arrangements to be
submitted, the administration took no steps to
made for commencement of namaz. prevent such an incident from

(In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab taking place. Hence, in this backdrop, it is
Jilani have relied upon this necessary to set out the events that led

40
to the incident which took place on 22-23 ―On investigation in Faizabad city it was revealed
December 1949: that because of the fear of Hindus and Sikhs no one
goes into the Masjid to pray Namaz Isha. If by
(i) On 12 November 1949, a police picket was chance any passenger stays in the Masjid he is
posted in the area; being threatened and teased by the Hindus ...
(sic)..... There are number of Numberdars ...
(ii) On 29 November 1949, Kripal Singh who was
(sic)..... if any Muslim into the Masjid, he is
the Superintendent of Police
harassed and abused. I made on the spot enquires
at Faizabad addressed a letter to K K Nayar, the which reveal that the said allegations are correct.
Deputy Commissioner Local people stated that the Masjid is in great
danger because of Hindus ... (sic)..... Before they
and District Magistrate, Faizabad stating: try to damage the wall of the Masjid, it seems
proper the Deputy Commissioner Faizabad may be
―I visited the premises of Babri mosque and the accordingly informed , so that no Muslim, going
Janm Asthan in Ajodhya this evening. I noticed into the Masjid may be teased. The Masjid is a
that several ―Hawan Kunds‖ have been Shahi monument and it should be preserved.‖
constructed all around the mosque. Some of them (Emphasis supplied)
have been built on old constructions already
existing there.‖ … 25 (iv) On 16 December 1949, K K Nayyar addressed
Exhibit 1 in Suit 3 a communication to Govind

PART D Narayan who was Home Secretary to the

Government of Uttar Pradesh,
74
stating that there was a ―magnificent temple‖ at
I found bricks and lime also lying near the Janm the site which had been
Asthan. They have a proposal to construct a very
big Havan Kund where Kirtan and Yagna on constructed by Vikramaditya, which was
Puranmashi will be performed on a very large demolished by Babur for the
scale. Several thousand Hindus, Bairagis and
Sadhus from outside will also participate. They PART D
also intend to continue the present Kirtan till
75
Puranmashi. The plan appears to be to surround the
mosque in such a way that entry for the Muslims construction of a mosque, known as Babri Masjid.
will be very difficult and ultimately they might be The letter stated that
forced to abandon the mosque. There is a strong
rumour, that on puranmashi the Hindus will try to building material of the temple was used in the
force entry into the mosque with the object of construction of the mosque
installing a deity.‖
(Emphasis supplied) and that a long time had elapsed before Hindus
were again restored to the
(iii) On 10 December 1949, Mohd Ibrahim who
was the Waqf Inspector possession of a site therein, at the corner of two
walls. The letter recorded
submitted a report to the secretary of the Masjid
stating that Muslims were a reference to recent happenings and stated:

being prevented from offering namaz Isha (the ―Some time this year probably in October or
namaz at night) at the November some grave-mounds were partially
destroyed apparently by Bairagis who very keenly
mosque, due to the fear of Hindus and Sikhs and resent Muslim associations with this shrine. On
there was an 12.11.49 a police picket was posted at this place.
The picket still continues in augmented strength.
apprehension of danger to the mosque: There were since other attempts to destroy grave-

41
mounds. Four persons were caught and cases are on 23 December 1949 by Ram Deo Dubey, Sub-
proceeding against them but for quite some time Inspector in charge. The
now there have been no attempts. Muslims, mostly
of Faizabad have been exaggerating these FIR recorded that on information received from
happenings and giving currency to the report that Mata Prasad, Constable
graves are being demolished systematically on a
No. 7, the complainant had arrived at the disputed
large scale. This is an entirely false canard inspired
site at 7:00 am and
apparently by a desire to prevent Hindus from
securing in this area possession or rights of a larger learned that a crowd of 50 or 60 persons had
character than have so far been enjoyed. Muslim broken the locks placed on
anxiety on this score was heightened by the recent
Navami Ramayan Path, a devotional reading of the compound of the mosque and had placed the
Ramayan by thousands of Hindus for nine days at a idols inside, besides
stretch. This period covered a Friday on which
Muslims who went to say their prayers at the inscribing the names of Hindu deities on the walls.
mosque were escorted to and from safely by the Thereafter, 5000 people
Police. As far as I have been able to understand
had gathered to perform Kirtan. It was alleged that
the situation the Muslims of Ayodhya proper are
Abhay Ram Das, Ram
far from agitated over this issue with the exception
of one Anisur Rahman who frequently sends frantic Shukul Das, Sheo Darshan Dass and about 50 or 60
messages giving the impression that the Babri persons had
Masjid and graves are in imminent danger of
demolition.‖ committed an act of trespass by entering the
mosque and installing idols,
Nayyar saw no apprehension of danger to the
mosque in spite of the letter thereby desecrating the mosque.

of the Superintendent of Police which contained The judgment of Justice S U Khan contains a
specific reference to the reference to the report/diary

plans which were afoot to enter the mosque and of the District Magistrate stating that on 23
install idols within its December 1949, the crowd was

precincts; controlled by allowing two or three persons to offer

bhog;
PART D
(vi) K K Nayyar opposed the direction of the state
76 government to remove the
(v) On the night between 22-23 December 1949, idols, fearing a loss of life. On 25 December 1949,
Hindu idols were K K Nayar recorded that
surreptitiously placed inside Babri Masjid by a puja and bhog was offered as usual. In spite of the
group of 50-60 persons. An directions to remove
FIR was lodged, complaining of the installation of the idols, K K Nayar declined to do so stating that
idols inside the inner ―if Government still
courtyard of the disputed site. The FIR, insisted that removal should be carried out in the
complaining of offences under face of these facts, I
Sections 147, 295, 448 of the Indian Penal Code would request to replace me by another officer‖;
was lodged at 7:00 pm
PART D

42
77 (f) From the internal communication of the officials
of the state, it is
(vii) K K Nayar addressed two letters on 26 and 27
December 1949 to clear that the desecration of the mosque was
planned as the
Bhagwan Sahai, Chief Secretary, Government of
U.P. stating that the Superintendent of Police had informed the Deputy
Commissioner of
incident that took place on 23 December 1949 was
―unpredictable and PART E

irreversible‖ on the basis of the above narration of 78

incidents. On the basis
(g) the plan of the Hindus to force entry into the
of the above documentary material, Dr Dhavan, mosque with the
learned Senior Counsel
intention of installing an idol;
submitted that:
(h) The desecration of December 22-23, 1949 was
(a) There was a mosque at the disputed site; a planned attack,

(b) The state authorities acknowledged the the seeds for which were sown with the ‗customs
structure as a mosque and deed‘ dated March

consistently referred to it as a mosque in their 19, 1949 when the temple of Ram Janmabhumi was
internal for the first time

communications; mentioned; and

(c) From the report of the Waqf commissioner (i) Officials of the state refused to thereafter
dated 10 December remove the surreptitiously

1949, the following points emerge: installed idols despite orders from the State
Government, further
―(a) The temple of the Hindus was outside the
courtyard Namaz was being read in the Babri confirming their alliance with the miscreants who
Mosque as it refers to the Muslim worshippers desecrated the
being harassed by the members of the Hindu
Community;‖ mosque.

(d) The state authorities acknowledged the threat E. Proceedings under Section 145
posed by the
50. On 29 December 1949, a preliminary order was
members of the Hindu Community to the mosque issued under Section 145
and to the people
of the CrPC 1898 by the Additional City
going to pray; Magistrate, Faizabad cum Ayodhya.

(e) The state authorities could foresee the potential Simultaneously, treating the situation as involving
desecration / attack an emergency, an order of

to the mosque and the worshippers, but took no attachment was issued and the disputed site was
steps to avert such directed to be entrusted to Sri

an incident; Priya Datt Ram who was the Chairman of the

Municipal Board. The order dated

43
29 December 1949 is extracted below: 1. The English Daily, ―The Leader‖ Allahabad, 2.
The Urdu Weekly ―Akhtar‖ Faizabad 3. The
―Whereas I, Markendeya Singh, Magistrate First Hindi Weekly ―Virakta‖ Ayodhya.
Class and Additional City Magistrate, Faizabad-
cum-Ayodhya, am fully satisfied from information Copies of this order shall also be affixed to the
received from Police sources and from other walls of the buildings in dispute and to the notice
credible sources that a dispute between Hindus and board at Ayodhya Police Station.
Muslims in Ayodhya over the question of rights of
proprietorship and worship in the building claimed Given under my hand and the seal of the court on
variously as Babari Masjid and Janam Bhoomi this the twenty ninth day of December, 1949 at
Mandir, situate at Mohalla Ram Kot within the Ayodhya.‖
local limits of my jurisdiction, is likely to lead to a
51. The receiver took charge on 5 January 1950
breach of the peace.
and made an inventory of the
I hereby direct the parties described below namely:
properties which had been attached. The last namaz
PART E which was offered in the

79 mosque was on 16 December 1949. The receiver

made an inventory of the
(1) Muslims who are bona fide residents of
Ayodhya or who claim rights of proprietorship or PART E
worship in the property in dispute;
80
(2) Hindus who are bona fide residents of Ahodhya
following articles:
or who claim rights of proprietorship or worship in
the property in dispute; ―1. Idols of Thakur Ji
to appear before me on 17th day of January at 11 1-(a) Two idols of Sri Ram Lala Ji, one big and
A.M. at Ayodhya Police Station in person or by another small.
pleader and put in written statements of their
respective claims with regard to the fact of actual (b) Six idols of Sri Shaligram Ji.
possession of the subject of dispute.
2 . A two feet high silver throne.
And the case being one of the emergency I hereby
attach the said buildings pending decision. 3. One idol of Hanuman Ji.

The attachment shall be carried out immediately by 4 (a) One glass of German Silver.
Station Officer, Ayodhya Police Station, who shall
(b) One small glass of silver.
then put the attached properties in the charge of Sri
Priya Datt Ram, Chairman Municipal Board, (c) One big glass of silver
Faizabad-cum-Ayodhya who shall thereafter be the
receiver thereof and shall arrange for the care of the 5. One Garun bell.
property in dispute.
6. One incensory.
The receiver shall submit for approval a scheme for
management of the property in dispute during 7. One Arti vessel.
attachment, and the cost of management shall be
8. One lamp stand
defrayed by the parties to this dispute in such
proportions as may be fixed from time to time. 9. ―Husra‖ and one sandal.
This order shall, in the absence of information
regarding the actual names and addresses of the 10. Two big photographs of Ram Janki.
parties to dispute to be served by publication in:
11. Four flower pots.

44
12. One (small) photograph of Badrinath Ji. (ii) The presence of two black Kasauti stone pillars
at the entry point of
13. One small photograph of Ramchandra Ji.
Hanumat Dwar containing engraved images of
14. Ornaments of Deity ‗Jai‘ and ‗Vijai‘;

Two caps of Ramlala and one cap of Hanuman Ji. (iii) The images of a ‗Garud‘ flanked by lions on
And eight robes of Deity. either side above Singh

15. Building- Three domed building with Dwar;

Courtyard and boundary wall, which is bounded as
under. (iv) An engraved stone image of a boar (‗varah‘)
on the outer wall, to the
North-Premises comprising Chhathi Courtyard and
Nirmohi Akhara. South-Vacant land and south of Hanumat Dwar;
―Parikrama‖ (circumambulation path) East-
‗Chabutara‘ (platform) of Ram temple under (v) Ramchabutra admeasuring 17 X 21 feet
possession of Nirmohi Akhara, and Courtyard of containing a small temple
temple premises. West-Parikrama‘
with idols of Lord Ram and Janki;
(circumambulation path)
(vi) On the south-eastern corner, a semi-circular
16. Small brass glass
platform attached to
17. One bowl of ―Phool‖ (an alloy) for sandal.
the neem-pipal tree containing idols of Panchmukhi
18. ―Panch Pas‖ and one brass plate. Mahadev,

PART E Parvati, Ganesh and Nandi;

81 (vii) The platform called Sita Rasoi containing the

foot prints of Lord
19. One small brass plate.
Ram, Lakshman, Bharat and Shatrughan;
20. One small wooden board.‖
(viii) The railing separating the inner and outer
In the course of the proceedings of the civil suit courtyards;
before the Trial Court at
PART F
Faizabad, the pleader, Shiv Shankar Lal, was
appointed as a Commissioner to 82

prepare a site plan of the locality and building. The (ix) The presence of twelve black Kasauti stone
Commissioner submitted a pillars supporting the

report on 25 May 1950, annexing two site plans three arches of the mosque which contained
which were numbered as Plan carvings of:

nos 1 and 2 which have been referred above in the (a) Lotus flowers;
earlier part of the judgment.
(b) Tandava nritya;
52. The salient features noticed in the
(c) Lord Hanuman; and
Commissioner‘s report are:
(d) Lord Krishna.
(i) The existence of two entry gates to the disputed
site, described as (Carvings on the other pillars had been obliterated);
Hanumat Dwar and Singh Dwar;

45
(x) The idol of infant Lord Ram placed on a (v) (a) Whether the first and the second plaintiffs
platform with two steps in in Suit 5 are juristic

the central portion of the domed structure; persons;

(xi) A parikrama around the disputed structure; and (b) Whether the third plaintiff was entitled to
represent the first and
(xii) The existence of structures surrounding the
disputed site including second plaintiffs as next friend;

huts of sadhus/bairagis and the wall called ‗sita- (vi) (a) Whether Nirmohi Akhara has established
koop‘. its claim of being a shebait

F. Points for determination of the deity of Lord Ram in the disputed premises;

The following points for determination arise in (b) If (a) is in the affirmative, whether the objection
these appeals: of Nirmohi Akhara to

(i) Whether Suits 3, 4 and 5 or any of them are the maintainability of Suit 5 is valid;
barred by limitation
(vii) Whether during the intervening night of 22/23
(ii) Whether the decision in Suit 81/280 of 1885 December 1949,
will operate as res judicata
Hindu idols were installed under the Central dome
in Suits 1, 3 and 5; of Babri Masjid

(iii) (a) Whether a Hindu temple existed at the as pleaded in the plaint in Suit 4;
disputed site;
(viii) (a) Whether it is open to the Court to
(b) Whether the temple was demolished by Babur determine if the three domed
or at his behest by
structure which existed at the disputed site prior to
his commander Mir Baqi in 1528 for the 6 December
construction of the Babri
1992 was a mosque in accordance with Islamic
Masjid; tenets;

PART F (b) If the answer to (a) is in the affirmative,

whether the three domed
83
structure at the disputed site was constructed in
(c) Whether the mosque was constructed on the accordance with
remains of and by
Islamic tenets;
using the materials of the temple; and
PART F
(d) What, if any are the legal consequences arising
out of the 84

determination on (a)(b) and (c) above; (ix) (a) Whether there was a dedication of the
three domed structure as a
(iv) Whether the suit property is according to the
faith and belief of the waqf at the time of its construction;

Hindus since time immemorial the birth-place of (b) In the alternative to (a) above, whether there is
Lord Ram; a waqf by public

user as claimed by the plaintiffs in Suit 4;

46
 (x) Whether the plaintiffs in Suit 4 have 53. The case of the Sunni Central Waqf Board and
established in the alternative other plaintiffs in Suit 4 is

their case of adverse possession; that in the town of Ayodhya ―there exists an
ancient historic mosque commonly
(xi) Whether the Muslims and or the Hindus have
established the claim known as Babri Masjid built by Emperor Babur
more than 433 years ago, after his
of worship and a possessory title over the disputed
property; conquest of India and his occupation of the
territories including the town of
(xii) Whether the plaintiffs in Suit 4 have
established their title to the Ayodhya‖. The mosque, it has been pleaded, was
for the use of Muslims in
disputed property;
general as a place of worship and for the
(xiii) Whether the plaintiff in Suit 5 have performance of religious ceremonies.
established their title to the
The mosque and the adjoining graveyard are stated
disputed property; to vest ―in the Almighty‖ and

(xiv) Whether the High Court was justified in the mosque since the time of its inscription is stated
passing a preliminary to have been used by

decree for a three way division of the disputed Muslims for offering prayers. Thus, the plaintiffs
property in equal have come forth with a positive

shares between the Nirmohi Akhara, the plaintiffs case in regard to the:
of Suit 4 and the
(i) Existence of a mosque;
plaintiffs of Suit 5;
(ii) Construction of the mosque by Babur 433 years
(xv) Whether the plaintiff in Suit 1 is entitled to the prior to the institution of
reliefs as claimed in
the Suit in 1961;
the suit; and
(iii) Construction of the mosque as a place of
(xvi) What, if any, relief ought to be granted in worship and for religious
Suits 1, 3, 4 and 5
ceremonies; and
These points will be analysed and dealt with in the
course of this judgment. (iv) Use of the mosque since its construction for the
purpose of offering
Before analysing the issues in the individual suits,
it would be appropriate to prayers.

discuss certain matters in dispute at the forefront, 54. Justice Sudhir Agarwal recorded in his
since they traverse the gamut judgment that it is accepted by the

of the entire case. counsel appearing on behalf of the Sunni Central

Waqf Board that the sole basis
PART G
for determining the date of the construction of the
85 mosque and correlating it to

G. The three inscriptions Babur consists of the inscriptions stated to have

been installed on the mosque as

47
referred to in the gazetteers and other documents. Arabic is over the central mihrab and furnishes the
In paragraph 1435, the Kalimah twice in the following

PART G words:

86 ―There is no god but Allah, Muhammad is His

Prophet.‖
learned Judge observed:
26 Führer, Alois Anton,
―Broadly, we find and in fact it is even admitted Edmund W. Smith, and James Burgess, The Sharqi
by Sri Jilani that the sole basis for determining the architecture of Jaunpur: with notes on Zafarabad,
period of construction of the disputed building and Sahet-Mahet and other places in the North-Western
to co-relate it with Emperor Babar is/are the provinces and Oudh (1994)
inscription(s) said to be installed in the disputed
building referred to in certain Gazetteers etc.‖ PART G

Now both before the High Court and during the 87

course of the present
Inscription XLI was found on the mimbar and was
proceedings, there has been a debate on whether written in Persian. The
the texts of the alleged
inscription as translated in English reads thus:
inscriptions on the mosque have been proved. Mr P
N Mishra, learned Counsel ―1. By order of Babar, the king of the world, 2.
This firmament-like, lofty, 3. Strong building was
appearing on behalf of the Akhil Bharatiya Shri erected. 4. By the auspicious noble Mir Khan. 5.
Ram Janmabhumi Punrudhar May ever remain such a foundation, 6. And such a
king of the world.‖
Samiti has questioned the authenticity of the
inscriptions. He sought to cast doubt Inscription XLII was found above the entrance
door. Also, in Persian, the
on whether the mosque was constructed in 1528
A.D. by or at the behest of inscription has been translated thus:

Babur. ―1. In the name of God, the merciful, the element.

2. In the name of him who …...; may God
55. The first document relied on is the text by perpetually keep him in the world. 3…........ 4.
Fuhrer titled ―The Sharqi Such a sovereign who is famous in the world, and
in person of delight for the world. 5. In his
Architecture of Jaunpur with notes on Zafarabad,
presence one of the grandees who is another king
Sahet-Mahet and other
of Turkey and China. 6. Laid this religious
places in the Northern-Western Provinces and foundation in the auspicious Hijra 930. 7. O God !
Oudh26. The original edition of May always remain the crown, throne and life with
the king. 8. May Babar always pour the flowers of
the book was printed in 1889 and there is a reprint happiness; may remain successful. 9. His
in 1994 by the ASI. In Chapter counsellor and minister who is the founder of this
fort masjid. 10. This poetry, giving the date and
X, there is a reference to three inscriptions bearing eulogy, was written by the lazy writer and poor
nos XL, XLI, and XLII. It is servant Fath-allah-Ghorl, composer.‖

from these three inscriptions that Fuhrer formed an After adverting to the inscriptions, Fuhrer notes:
opinion that the Babri
―The old temple of Ramachandra at
mosque was constructed at Ayodhya in 1523 A.D Janamasthanam must have been a very fine one, for
or A.H. 930. Inscription XL in many of its columns have been used by the

48
Musalmans in the construction of Babar's masjid. ―1. In the name of One who is Great (and) Wise
These are of strong, close-grained, dark-coloured (and) who is Creator of the whole world and is free
or black stone, called by the natives kasauti, from the bondage of space.
―touch-stone slate,‖ and carved with different
devices. They are from seven to eight feet long, 2. After His praise, peace and blessings be on
square at the base, centre and capital, and round or Prophet Muhammad, who is the head of all the
octagonal intermediately.‖ Prophets in both the worlds.

PART G 27 William Erskine,

John Leyden, and Annette Susannah Beveridge, the
88 B bur-nama in English (Memoirs of B bur),
London: Luzac & Co. (Reprint in 2006 by Low
56. The second piece of documentary evidence in Price Publications, Delhi)
which these inscriptions are
PART G
purportedly translated the ―Babur-Nama‖. The
translation by A S Beveridge was 89

first published in 192127. Apart from the book, 3. In the world, it is widely talked about Qalandar
extracts of some of its pages were Babur that he is a successful emperor.‖

exhibited by the parties to the proceedings. Beveridge stated that the second inscription outside
the mosque was
Appendix (U) refers to two inscriptions; one inside
and another outside the incomplete.

mosque. Photocopies of the pages of appendix (U) 58. The third set of texts in support of the
were marked as appendix T3 inscriptions is published in

in Suit 4. ―Epigraphia Indica-Arabic-Persian Supplement

(In continuation of
57. Beveridge obtained the text of the inscription
through the Deputy Epigraphia Indo-Moslemica) 1964 and 1965‖28
(reprinted in 1987). This has
Commissioner of Faizabad on a request made by
her spouse. Beveridge notes been published by the Director General, ASI and
contains a reference to the
that while reproducing the text she had made a few
changes. The text of the inscriptions of Babur. The text is attributed to
Maulvi M Ashraf Husain and is
inscription inside the mosque, as quoted by
Beveridge is as follows: edited by Z A Desai. The introductory note to the
edition states:
―(1) By the command of the Emperor Babur
whose justice is an edifice reaching up to the very ―A rough draft of this article by the author, who
height of the heavens. (2) The good-hearted Mir was my predecessor, was found among sundry
Baqi built this alighting place of angels. papers in my office. At the time of his retirement in
1953, he had left a note saying that it might be
(3) It will remain an everlasting bounty, and published after revision by his successor.
(hence) the date of its erection became manifest Consequently, the same is published here after
from my words: It will remain an everlasting incorporation of fresh material and references and
bounty.‖ also, extensive revision and editing. The readings
have been also checked, corrected and
The text of the inscription outside the mosque is
supplemented with the help of my colleague, Mr.
thus:
S.A.Rahim, Epigraphical Assistant,-Editor.‖

49
The text contains the following description in Sayyid Badru'l Hasan of Fyzabad. The present
regard to the construction of Babri inscription, restored by the Muslim community, is
not only in inlaid Nasta‘liq characters, but is also
Masjid: slightly different from the original, owing perhaps
to the incompetence of the restorers in deciphering
―The Baburi-Masjid, which commands a
it properly.
picturesque view from the riverside, was
constructed according to A. Fuhrer in A.H. 930 The readings and translations of the historical
(1523-24 A.D.) but his chronology, based upon epigraphs mentioned above, except in the case of
incorrect readings of inscriptions supplied to him, one, were published by Fuhrer and Mrs. Beveridge,
is erroneous. Babur defeated Ibrahim Lodi only in but their readings are so incomplete, inaccurate and
A.H. 933 (1526 A.D.), and moreover, the year of different from the text that their inclusion in this
construction, recorded in two of the three article is not only desirable but also imperative.
inscriptions studied below, is clearly A.H. 935
(1528-29 A.D.). Again, it was not built by Mir The epigraph studied below was inscribed on a slab
Khan as stated by him. The order for building the of stone measuring about 68 by 48 cm., which was
mosque seems to built up into the southern side of the pulpit of the
mosque, but is now lost, as stated above. It is edited
28 Epigraphia Indica, here from the estampage obtained from Sayyid
Arabic and Persian Supplement (in continuation of Badru'l Hasan of Fyzabad. Its three-line text
Epigraphia Indo-Moslemica) (Z A Desai Eds), consists of six verses in Persian, inscribed in
Archaeology Survey of India (1987) ordinary Naskh characters within floral borders. It
records the construction of the mosque by Mir Baqi
PART G
under orders from emperor Babur and gives the
90 year A.H. 935 (1528-29 A.D.) in a chronogram.‖

have been issued during Babur's stay at Ajodhya in PART G

A.H. 934 (1527-28 A.D.), but no mention of its
91
completion is made in the Babur Nama. However,
it may be remembered that his diary for the year The author states that on the southern side of the
A.H. 934 (1527-28 A.D.) breaks off abruptly, and pulpit of the mosque was an
throws the reader into the dark in regard to the
account of Oudh.‖ inscription fixed on a slab of stone measuring 68 X
48 cm but the original was
The text also provides an account of the manner in
which the author obtained an lost. What is quoted is the version obtained from
the inked rubbing noted above.
inked rubbing of one of the inscriptions from
Sayyid Badru‘l Hasan of Faizabad: The text of the first inscription was thus:

―The mosque contains a number of inscriptions. ―(1) By the order of king Babur whose justice is
On the eastern facade is a chhajja, below which an edifice, meeting the palace of the sky (i.e. as
appears a Quranic text and above, an inscription in high as the sky).
Persian verse. On the central mihrab are carved
religious texts such as the Kalima (First Creed), (2) This descending place of the angels was built
etc. On the southern face of the pulpit was by the fortunate noble Mir Baqi.
previously fixed a stone slab bearing a Persian
(3) It will remain an everlasting bounty, and
inscription in verse. There was also another
(hence) the date of its erection became manifest
inscription in Persian verse built up into the right
from my words: It will remain an everlasting
hand side wall of the pulpit. Of these, the
bounty.‖
lastmentioned two epigraphs have disappeared.
They were reportedly destroyed in the communal As regards the second inscription, the judgment of
vandalism in 1934 A.D., but luckily, I managed to Justice Sudhir Agarwal notes:
secure an inked rubbing of one of them from

50
―1449. Fuhrer‘s inscription no. XLI which he be noted. While the second inscription contains a
mentions that the same was found inside the reference to the order of Babur
mosque on the mimbar (right hand side of the
disputed building) has been termed as second for the construction of the mosque, construction is
inscription by Maulvi F. Ashraf Hussain. It consists attributed to Mir Khan (not Mir
of three couplets arranged in six lines. He
Baqi). The third inscription refers to the foundation
(Hussain) clearly admits non existence of the said
of the construction of the
inscription by observing ―the epigraphical Tablet‖
which was built up into right hand side wall of the mosque being laid in Hijri 930 which corresponds
pulpit, does not exist now, and, therefore, the text to 1523 A.D. This is prior to the
of the inscription is quoted here from Furher‘s
work, for the same reason, its illustration could not invasion by Babur and the battle at Panipat which
be given.‖ Husain/Desai however, did not agree to resulted in the defeat of
the reading of the inscription by Fuhrer and
observed that Furher‘s reading does not appear free Ibrahim Lodhi. As regards the work of Beveridge,
from mistakes.‖ it is evident that she had

The text of the third inscription is as follows: neither seen the original text nor had she translated
the text of the inscriptions
―(1) In the name of Allah, the Beneficent, the
Merciful. And in Him is my trust. herself. Beveridge obtained a purported text of the
inscriptions through her
(2) In the name of One who is Wise, Great (and)
Creator of all the universe (and) is spaceless. After spouse from the Deputy Commissioner, Faizabad.
His praise, blessings be upon the Chosen one (i.e. Beveridge claimed that she
the Prophet), who is the head of prophets and best
received a copy of the text through correspondence
in the world. The Qalandar-like (i.e. truthful) Babur
initiated by her spouse who
has become celebrated (lit. a story) in the world,
since (in his time) the world has achieved was an ICS officer in the colonial government. She
prosperity. had neither read the original
PART G nor is there anything to indicate that she was in a
position to translate it.
92
Beveridge states that she made ―a few slight
(3) (He is) such (an emperor) as has embraced (i.e.
changes in the term of expression‖.
conquered) all the seven climes of the world in the
manner of the sky. In his court, there was a What changes were made by Beveridge has not
magnificent noble, named Mir Baqi the second been explained. According to
Asaf, councillor of his Government and
administrator of his kingdom, who is the founder of her, the text of the two inscriptions was incomplete
this mosque and fort-wall. and was not legible. The text

(4) O God, may he live for ever in this world, with PART G
fortune and life and crown and throne. The time of
the building is this auspicious date, of which the 93
indication is nine hundred (and) thirty five (A.H.
provided by Fuhrer shows that the construction of
935=1528-29 A.D.). Completed was this praise of
the mosque was not in 1528
God, of Prophet and of king. May Allah illumine
his proof. Written by the weak writer and humble A.D. Inscription XLI mentions the name of Mir
creature, Eathu'llah Muhammad Ghori.‖ Khan while inscription XLII refers to
As regards the inscriptions noted by Fuhrer, certain the construction of the mosque as Hijri 930.
significant aspects need to

51
59. Justice Sudhir Agarwal while adverting to the Ashraf Husain, the epigraphs disappeared in 1934
work of Ashraf Husain and Z at the time of the communal

A Desai took serious note of the ―fallacy and riot. However, reliance was sought to be placed on
complete misrepresentation‖ of the an alleged ―inked rubbing‖

author in publishing a text under the authority of without explaining the identity or whereabouts of
the ASI without regard for its the person from whom it was

accuracy, correctness and genuineness: obtained. The criticism of the High Court is not
without basis. The identity of the
―1463. We are extremely perturbed by the manner
in which Ashraf Husain/Desai have tried to give an individual from whom the inked rubbings were
impeccable authority to the texts of the alleged obtained was not explained. Nor
inscriptions which they claim to have existed on
the disputed building though repeatedly said that was there any explanation about the manner in
the original text has disappeared. The fallacy and which he had in turn obtained it.
complete misrepresentation on the part of author in
There was indeed nothing to co-relate the text
trying to give colour of truth to this text is writ
which that individual had obtained
large from a bare reading of the write up. We are
really at pains to find that such blatant fallacious with the translation in the text compiled by Ashraf
kind of material has been allowed to be published Husain and Z A Desai. The
in a book published under the authority of ASI,
Government of India, without caring about its High Court observed:
accuracy, correctness and genuineness of the
subject. …Both these inscriptions i.e., the one ―1464…When the original was already lost and
claimed to be on the southern face of the pulpit and there was nothing to verify the text of restored
the other on the right hand side wall of the pulpit inscription with the original, neither the restored
are said to be non-available by observing ―of one can be relied upon nor is it understandable as
these the last mentioned two epigraphs have to how he could have any occasion to compare the
disappeared‖. The time of disappearance according restored one with the alleged… original…‖
to Maulvi Ashraf Husain was 1934 A.D. when a
In this background, the High Court observed:
communal riot took place at Ayodhya. However, he
claimed to have got an inked rubbing on one of the ―1466…The text, description and whatever had
two inscriptions from Syed Badrul Hasan of been set up by Ashraf Husain in respect of the
Faizabad. The whereabouts of Syed Badrul Hasan, above inscription is unbelievable and lacks
who he was, what was his status, in what way and trustworthiness. We are constrained to observe at
manner he could get that ink rubbing of the said this stage that in the matter of historical events and
inscription and what is the authenticity to believe it that too, when it bears a religious importance and
to be correct when original text of the inscription the matter has also seen serious disputes between
are not known. There is nothing to co-relate the two communities, the persons who are connected
text he got as the correct text of the inscription with history… must behave responsibly and before
found in the disputed building claimed to have lost making any write up, should check up, cross check
in 1934.‖ and verify very carefully what they are writing
since the consequences of their write up may be
The High Court observed that two inscriptions,
dangerous and irreparable.‖
those on the southern face of the
60. A fourth version of the inscriptions emerged
pulpit and on the wall on the right of the pulpit
pursuant to a direction of the
were not available. According to
Civil Judge dated 26 March 1946 in Shia Central
PART G
Waqf Board v Sunni Central
94

52
Board of Waqf29. In pursuance of those directions, available until his death is for the following
a person by the name of Sr. periods, (noted by Justice Sudhir

A Akhtar Abbas is stated to have read an Agarwal):

inscription and prepared his inspection
―1487… 1. From 1 Safar 932 Hijri (17 November
29 Regular Suit No 29 1525 AD) till 12 Rajab 934 Hijri (2nd April 1528
of 1945 AD) 2. From 3 Muharram 934 Hijri (18th
September 1528 AD) till 3 Moharram 936 Hijri
PART G (7th September 1529 AD).‖

95 The records for the period from 2 April 1528 till 17

September 1528 are missing.
note. The High Court, however, noted that the text
as reproduced in the judgment Out of this period, the period from 2 April 1528 to
15 September 1528 was of 934
dated 30 March 1946 states that in the first
inscription, the words are ―by the 30 Rashid Akhtar Nadvi,
Tuzk e Babri, Lahore: Sang e Mil (1995)
order of Shah Babar, Amir Mir Baki built the
resting place of angels in 923 A.H. PART G

i.e. 1516-17 A.D‖. In respect of the second 96

inscription, there is a reference to ―Mir
Hijri while the period from 15 September 1528 to
Baki of Isphahan in 935 A.H. i.e. 1528-29 AD‖. 17 September 1528 was of 935
The High Court observed that it
Hijri. Justice Sudhir Agarwal noted in the High
was not apprised of whether in the entire Babur- Court that the crucial year was 935
Nama, there was a reference to
Hijri and the missing record was only of three days.
any Mir Baki Isphahani though, there was a
reference to Baki Tashkendi. Besides Babur defeated Ibrahim Lodhi at Panipat on 20
April 1526. On 28 March 1528,
one of the two tablets was new and had been
replaced for the original tablet Babur reached the junction of the rivers Ghaghara
and Saryu. After a reference
which had been demolished during the communal
riots of 1934. On the above to the date 2 April 1528, there is a break until 15
September 1528.
state of the evidence, the High Court doubted the
genuineness and authenticity 62. Beveridge‘s translation of Babur-Nama refers
to the employment of
of the transcripts of the inscriptions which were
relied upon before it. artisans in the construction of buildings at several
places including at Agra and
61. At this stage, it is necessary to make a reference
to the ―Tuzuk-i-Babri‖30. Gwalior:

The Babur-Nama contains the daily diary of Babur ―1533… Another good thing in Hindustan is that
commencing from 899 Hijri it has unnumbered and endless workmen of every
kind. There is a fixed caste (jam'i) for every sort of
(1494 AD). Out of the life span of Babur, a work and for everything, which has done that work
description of eighteen years is or that thing from father to son till now. Mulla
Sharaf, writing in the Zafar-nama about the
available over different periods. Babur came to
building of Timur Beg's Stone Mosque, lays stress
India in 1526 A.D. The description

53
on the fact that on it 200 stone-cutters worked, destroyed‖ by Aurangzeb, among them being:
from Azarbaijan, Fars, Hindustan and other
countries. But 680 men worked daily on my (i) Maisa (Mayapur);
buildings in Agra and of Agra stone-cutters only;
(ii) Matura (Mathura);
while 1491 stone-cutters worked daily on my
buildings in Agra, Sikri, Biana, Dulpur, Gualiar (iii) Caxis (Kashi); and
and Kuil. In the same way there are numberless
artisans and workmen of every sort in Hindustan.‖ (iv) Hajudia (Ajudhya).

In this context, Justice Agarwal observed: Manucci was a traveller who had visited India
during the reign of Aurangzeb.
―1534. There is mention of buildings in Babur-
Nama at different places including temple of Besides, the work of Manucci, there is the ―Ain-e-
Gwalior, mosque at Delhi, Agra, Gwalior and other Akbari‖32 written by Abul Fazal
several places but it is true that neither there is
mention of demolition of any religious place by Allami. Ain-e-Akbari deals with the province of
Babar in Awadh area nor there is anything to show Oudh and refers to Ayodhya and
that he either entered Ayodhya or had occasion to
its association with Lord Ram. The text refers to
issue any direction for construction of a building
―two considerable tombs of six
and in particular a Mosque at Ayodhya.‖
and seven yards in length‖ near the city. The text
PART G
identified several sacred places
97 31 Manucci, Niccol , and William Irvine, Storia do
Mogor; or, Mogul India, 1653-1708, J. Murray:
The High Court recorded the submission made London (1907). 32 Ab al-Faz l ibn Mub rak and H.
before it by Mr Jilani, counsel for Blochmann, The Ain i Akbari, 1873, Calcutta:
Rouse (Reprint of 1989 published by Low Price
the Sunni Central Waqf Board, in paragraph 1577 Publications, Delhi)
of the judgment that since
PART G
Babur did not enter Ayodhya himself, there was no
question of a demolition of a 98

temple by him and a construction of a mosque. The of pilgrimage. It specifically speaks of Ayodhya
absence in Babur-Nama of a where during the month of

reference to the construction of a mosque has been Chaitra, a religious festival is held. Mr Mishra
relied upon as a factor to urged that there is no reference in

discredit the inscriptions which have been analysed the Ain-e-akbari to the construction of a mosque at
earlier. This line of enquiry Ayodhya. The text refers to

must be read with the caution which must be certain cities as being dedicated to the divinities,
exercised while drawing negative among them being Kashi and

inferences from a historical text. Ayodhya. By its order dated 18 March 2010, the
High Court permitted the above
63. Mr P N Mishra, learned Counsel adverted to the
work of Niccolao Manucci text to be relied on under the provisions of Section
57(13) of the Evidence Act
titled ―Indian Texts Series-Storia Do Mogor or
Mogul India 1653-1708‖31, 1872.

translated in English by William Irvine. Manucci 64. Rebutting the above submissions principally
identifies ―the chief temples urged by Mr P N Mishra and

54
Mr Mohd Nizamuddin Pasha, learned Counsel (i) Justice S U Khan
appeaing on behalf of the plaintiffs
Justice S U Khan held:
in Suit 4 urged that an unnecessary confusion was
sought to be created over the ―Muslims have not been able to prove that the
land belonged to Babur under whose orders the
identity of Mir Baqi. He submitted that in the mosque was constructed‖
Babur-Nama, he is known by the
Moreover, the learned judge held that the
following titles / suffixes: inscriptions on the mosque as

(j) Baqi Sharghwal – ―high official of Central translated by Fuhrer, Beveridge and Z A Desai
Asian sovereigns, who is were not authentic and hence,

supreme over all qazis and mullah‖. (See on the basis of these inscriptions alone, it could not
―Baburnama‖, translated be held either that the

by A.S. Beveridge, 1921, p. 463); disputed building was constructed by or under the
orders of Babur or that it was
(ii) Baqi Mingbashi – Commander of a thousand
men (See constructed in 1528. Justice S U Khan specifically
observed that:
―Baburnama‖, translated by A.S. Beveridge, 1921,
p. 590); and ―In this regard detailed reasons have been given
by my learned brother S. Agarwal, J. with which I
(iii) Baqi Tashkinti – Hailing of Tashkent (See fully agree‖.
―Baburnama‖,
However, in the course of his conclusions titled as
translated by A.S. Beveridge, 1921, p. 601, 684). ―Gist of the Findings‖ Justice

Mr Pasha urged that the inscriptions above the door Khan held:
of Babri Masjid read as Mir
― 1. The disputed structure was constructed as
Baqi Asif Sani, which the District Judge, Faizabad mosque by or under orders of Babar. 2. It is not
misread as ‗Isfahani‘ in his proved by direct evidence that premises in dispute
including constructed portion belonged to Babar or
order of 1946 in the suit between the Shia Waqf
the person who constructed the mosque or under
Board and Sunni Waqf Board.
whose orders it was constructed.‖
PART G
The conclusion in point 1 in the above extract of
99 the conclusions is contrary to the

65. Having set out the material which was earlier finding that it could not be held either that
presented before the High Court in the mosque was constructed by

support of the plea that the mosque was constructed or under the orders of Babur or that it was
in 1528 by Mir Baki, on the constructed in 1528. The finding on

instructions of Emperor Babur following the PART G

conquest of the sub-continent, it
100
becomes necessary to analyse the conclusions
point 1 is also contrary to the specific observation
which have been arrived at by
that Justice S U Khan was in
the three judges of the High Court :
agreement with the decision of Justice Sudhir
Agarwal in regard to the lack of

55
authenticity of the inscriptions. on this aspect. However, applying the principle of
informed guess, we are of the view that the
(ii) Justice Sudhir Agarwal building in dispute may have been constructed,
probably, between 1659 to 1707 AD i.e. during the
Justice Sudhir Agarwal held:
regime of Aurangzeb.‖
―1679... it is difficult to record a finding that the
In the last part of the above findings, the Judge has
building in dispute was constructed in 1528 AD by
recorded that it was not
or at the command of Babar since no reliable
material is available for coming to the said possible to enter a finding of fact with any certainty
conclusion. On the contrary the preponderance of as to when the structure was
probability shows that the building in dispute was
constructed at some later point of time and the constructed in the absence of pleading or evidence.
inscriptions thereon were fixed further later but The ―informed guess‖ at the
exact period of the two is difficult to ascertain… ...
1681. In the absence of any concrete material to end of the above observation that the structure was
show the exact period and the reign of the probably constructed by
concerned Mughal emperor or anyone else during
Aurangzeb between 1659-1707 cannot be placed
which the above construction took place, we are
on the pedestal of a finding of
refraining from recording any positive finding on
this aspect except that the building in dispute, to fact.
our mind, may have been constructed much later
than the reign of Emperor Babar and the (iii) Justice D V Sharma
inscriptions were fixed further thereafter and that is
why there have occurred certain discrepancies Justice DV Sharma in the course of his decision
about the name of the person concerned as also the arrived at the finding that:
period. The possibility of change, alteration or
―Thus, on the basis of the opinion of the experts,
manipulation in the inscriptions cannot be ruled
evidence on record, circumstantial evidence and
out.‖
historical accounts…, it transpires that the temple
While answering the issues framed in the suits, was demolished and the mosque was constructed at
Justice Agarwal held: the site of the old Hindu temple by Mir Baqi at the
command of Babur. Issue Nos. 1 and 1(a) are
―1682... (A) Issue no.6 (Suit-1) and Issue No.5 decided in favour of the defendants and against the
(Suit-3) are answered in negative. The defendants plaintiffs.‖
have failed to prove that the property in dispute
was constructed by… Emperor Babar in 1528 AD. 66. The High Court entered into the controversy
Accordingly, the question as to whether Babar surrounding the authenticity of
constructed the property in dispute as a 'mosque'
the inscriptions on the basis of the hypothesis that
does not arise and needs no answer. (B) Issue
the inscriptions were the sole
No.1(a) (Suit-4) is answered in negative. The
plaintiffs have failed to prove that the building in basis for asserting that the mosque had been
dispute was built by Babar. Similarly defendant constructed by Babur. Justice
no.13 has also failed to prove that the same was
built by Mir Baqi. The further question as to when Agarwal came to the conclusion that the
it was built and by whom cannot be replied with inscriptions were not authentic and
certainty since neither there is any pleading nor
hence a finding that the mosque was constructed by
PART G or at the behest of Babur in

101 1528 A.D. could not be arrived at. Justice S U

Khan‘s reasoning in the text of the
any evidence has been led nor any material has
been placed before us to arrive at a concrete finding

56
judgment was in accord with the view of Justice completion of the mosque. To this day it has no
Agarwal but then, as we have minarets, and no place for storage ov f water for
Vazoo. Many lives were lost in these battles. The
noted, his ultimate conclusion that the disputed last such battle occurred in 1855. Sri Rama Janma
structure was constructed as a Bhumi, including the building raised during the
Babar‘s time by Mir Baqi, was in the possession
PART G
and control of Hindus at that time.‖
102 (Emphasis supplied)

mosque by or under the orders of Babur is not PART G

consistent with the earlier part of
103
the reasons. Justice Sharma held that the mosque
Immediately following the text of the pleading in
was constructed by Mir Baqi
the above extract, is a reference
at the command of Babur.
to the 1928 edition of the Faizabad Gazetteer. The
67. The basic issue, however, is whether it was text of the gazetteer is
necessary for the High Court
incorporated in the plaint and reads thus:
to enter into this thicket on the basis of the
―23…In 1528 Babar came to Ayodhya and halted
pleadings of the parties. In the suit
here for a week. He destroyed the ancient temple
instituted by the Sunni Central Waqf Board (Suit and on its site built a mosque, still known as
4), the case is that the mosque Babar‘s mosque. The materials of the old structure
were largely employed, and many of the columns
was constructed by Babur after his conquest and are in good preservation, they are of close-grained
occupation of the territories, black stone, called by the natives kasauti and
carved with various device.‖
including the town of Ayodhya. Significantly, Suit
5 which has been instituted on 68. The pleading in Suit 5 demonstrates that even
according to the plaintiffs,
behalf of Lord Ram and Ram Janmabhumi through
a next friend also proceeds the mosque was built by Mir Baqi, a commander of
Babur‘s forces, during the
on the basis that the mosque was constructed by
Mir Baqi who was the time of Babur. Hence, both in the pleading in Suit 4
and in Suit 5, there was
commander of Babur‘s forces. The pleading in the
plaint in Suit 5 reads thus: essentially no dispute about the fact that the
mosque was raised in 1528 A.D. by
―23. That the books of history and public records
of unimpeachable authenticity, establish or at the behest of Babur. The case in Suit 5 is that
indisputably that there was an ancient Temple of the Hindus retained
Maharaja Vikramaditya‘s time at Sri Rama Janma
Bhumi, Ayodhya. That Temple was destroyed possession and control over the mosque. This is a
partly and an attempt was made to raise a mosque separate matter altogether
thereat, by the force of arms, by Mir Baqi, a
which has to be adjudicated upon. But, from the
commander of Babar‘s hordes. The material used
pleadings both in Suit 4 and in
was almost all of it taken from the Temple
including its pillars which were wrought out of Suit 5, there appears to be no dispute about the
Kasauti or touch-stone, with figures of Hindu gods origin or the date of construction
and goddesses carved on them. There was great
resistance by the Hindus and many battles were of the mosque. Nirmohi Akhara in Suit 3 did not
fought from time to time by them to prevent the accept that the structure is a

57
mosque at all for, according to it, the structure has 69. Mr P N Mishra, learned Counsel appearing on
always been a Hindu temple behalf of defendant no 20 in

which has been managed by the Nirmohis at all Suit 5 (Akhil Bharatiya Shri Ram JanmBhumi
material times. The Nirmohis‘ Punrudhar Samiti) has made an

disputed the very existence of a mosque, claiming earnest effort to demonstrate that the Babri Masjid
it to be a temple. The case of lacked the essential features

the Nirmohis will be considered separately while of a valid mosque under Islamic jurisprudence. The
assessing the pleadings, submissions, essentially deal

evidence and issues which arise in Suit 3. But, on with two facets:
the basis of the pleadings in
(i) Features bearing on the location, construction
Suit 4 and Suit 5, the controversy in regard to the and design of a mosque;
authenticity of the inscriptions
and
will not have any practical relevance.
(ii) The requirements for a valid dedication.
PART H
PART H
104
105
There is another reason for adopting this line of
approach. In the ultimate In this segment, the first limb of the submissions is
addressed. Whether there
analysis, whether the mosque was built in 1528 (as
both sets of plaintiffs in suit 4 was a valid dedication will be addressed in a
separate segment in Suit 4. Mr
and suit 5 have pleaded) or thereafter would
essentially make no difference to the Mishra urged that Babri Masjid cannot be treated to
be a valid mosque since it
submissions of the rival sides. The plaintiffs in Suit
4 have stated before this lacked essential features in relation to location,
design and construction.
Court that the records on which they place reliance
in regard to their claim of 70. Before the High Court, the following issues
were framed in Suit 4:
worship, use and possession commence around
1860. This being the position, Issue no 1 in Suit 4 - Whether the building in
question described as a mosque in
the precise date of the construction of the mosque
is a matter which has no the sketch map attached to the plaint was a mosque
as claimed by the plaintiffs;
practical relevance to the outcome of the
controversy having regard to the If the answer is in the affirmative:

pleadings in Suits 4 and 5 and the positions adopted (a) When was it built and by whom-whether by
by the contesting Hindu and Babur as alleged by the

Muslim parties before this Court. plaintiffs or by Mir Baqi as alleged by defendant
no. 13; and
H. Judicial review and characteristics of a mosque
in Islamic law (b) Whether the building had been constructed on
the site of an alleged Hindu

58
temple after demolishing the same as alleged by there is no provision for reciting Namaz. To this
defendant no. 13. If so, day it has no minerettes, no place for storage of
water for Vazoo. (5) The Muslim Faith as
its effect. adumbrated in Holy Koran does not permit the
construction of a mosque on the site of temple after
Issue No 19(d) – Whether the building in question
demolishing the temple. (6) Babur never dedicated
could not be a mosque under
the property of disputed mosque to ALLAH. Even
Islamic Law in view of the admitted position that it supposing without admitting that Babur constructed
did not the disputed mosque, yet as it has been done by
committing trespass, demolishing the Temple, the
have minarets. abode of God, either by Babur or at his instance by
Mir Baqi, the Governor of Oudh, the dedication is
Issue No 19(e) – Whether the building in question wholly invalid and void. The material of the old
could not legally be a mosque temple was largely employed in building the
mosque and a few of the original columns are still
as on plaintiffs‘ own showing it was surrounded by
in good preservation. They are of closed grained
a graveyard on three sides.
black stone (Kasauti) bearing various Hindi Bas-
Issue No 19(f) – Whether the pillars inside and reliefs. The outer beam of the main structure being
outside the building in question of sandal wood, the height of the columns is 7 to 8
ft., the shape of the base, the middle Section and
contain images of Hindu Gods and Goddesses. If the capital is square, the rest being round or
the finding is in the affirmative, octagonal . . . . . Subsequently, Aurangjeb also
desecrated the shrines of Ayodhya which led to
whether on that account the building in question prolonged bitterness between Hindus and
cannot have the character of Musalmans. Latter also occupied Janmasthan by
force and also made an assault on Hanumangarhi.
mosque under the tenets of Islam.
Attacks and counter attacks continued under the
PART H leadership of Maulvi Amir Ali (See page 352 of
Faizabad Gazetteer 1960). (7) A mosque must be
106 built in a place of peace and quiet and near a place
where there is a sizeable and large number of
71. The written statement of defendant no 20 Muslim population. According to the Tenets of
provides the basis for the Islam, a mosque cannot be built at place which is
surrounded on all sides by temples where the sound
assertion that Babri Masjid did not fulfil or abide
of music, of Conch shells
by the features required for a
PART H
mosque in Islamic jurisprudence:
107
―…(1) The tomb of this disputed Masjid if it is to
be looked from behind would show that it is not in or Ghanta Ghariyalis must always disturb the peace
the style developed by Turkis during fifteenth and quiet of the place. (8) A mosque must have
century, nor the Mehrab of the Masjid in that style minerette for calling the Ajan. According to Baille
is to be found. Thus there is no tomb in the ―When an assembly of worshippers pray in
disputed Masjid as is to be found in other mosques Masjid with permission, i.e. delivery. But it is a
generally. (2) On the north door in the front facing condition that prayers be with Ajan or the regular
each other there are two tigers. They are in the style call and be public and not private, for though there
of taking leaps and their tails are just in the same should be an assembly yet if it is without Izah and
style when a tiger takes the leap. Between these the prayers are private instead of public, the place
two tigers there is a peacock. This is not a is no Masjid according to the true disciples.‖ Indeed
characteristic of a mosque. (3) The various Hindu there has been no mosque without a minerette after
idols are painted or their scriptions are to be found the first half century fight. (See P.R. Ganapati
in the disputed mosque. (4) In the disputed mosque Iyer‘s law relating to Hindu and Muhammadan

59
Endowments 2nd Edition 1918 Chapter XVII, page beings, or straight or crooked images or
388). (9) According to the claim laid by the representations of any women are engraved in any
Muslims in the present suit, the building is structure , he will try to remove such engraving
surrounded on sides by a graveyard known as Ganj before the recital of namaz. But if he does not do so
Shahidan. There is a mention in the Faizabad even then the namaz will get offered. I have
Gazetteer also of the burial of seventy-five already spoken about the status and efficacy of
Muslims at the gate of Janmasthan and the place such namaz. It will be Makrooh in some
being known as Ganj Shahidan after the battle of circumstances and it will not be so in some
1855. Although there are no graves anywhere near circumstances. If the Imam does not try to remove
the building at Sri Rama Janma Bhumi or in its this types of pictures and shapes, it will be a crime
precincts or the area appurtenant thereto for the last on his part. Similarly it is mentioned in the
more than 50 years and if the building was ‗Shariyat‘ that if picture or idol of any living
surrounded by a graveyard during the British times being exists over the walls or pillars of mosque,
soon after the annexation of Audh by them the then the namaz offered there would be ‗Makruh‘
building could not be mosque and could not be (undesirable) under certain situations. It is so
used as a mosque for offering of prayers except the mentioned in the ‗Hidaya‘ of ‗Fiqh‘.‖
funeral prayers.‖
(ii) Mohd Burhanuddin (PW-11)
72. The above challenge is sought to be buttressed
by placing reliance on the ―It is true that there is a restriction on forcefully
building a mosque over someone else‘s land. If the
evidence of some of the Muslim witnesses. ownership of someone is proved over a land, then a
Relevant parts of the depositions of mosque would not be built over there in absence of
the consent of owner. . . .If any property belongs to
these witnesses have been adverted to during the a non-Muslim or even a Muslim, then a mosque
course of the hearing and are cannot be forcibly built over there under any
circumstance by demolishing the same. If it is so
reproduced below:
proved, then the mosque would not be considered
(i) Mohammad Idris (PW-10) legal/proper.‖

According to the witness: The witness spoke of arrangements for Vazoo or

ablution:
―A building built on somebody‘s land by force
will not be a mosque. So, there is no question of its ―Namaz can be offered even by performing
being legitimate or illegitimate. Demolishing any ‗Taimum‘ (substitute for Vazoo), if ‗Vazoo‘ has
place of worship is forbidden in Islam. So, there is not been performed and there is no arrangement in
no question of breaking the same and building a the mosque for performing ‗Vazoo‘ and water is
mosque instead. If the debris of any fallen temple not ‗Dastyab‘ (available) even at distant places . . .
is sold by its owner, then there is no prohibition on I have also seen such mosques, where there was no
building a mosque by purchasing such materials. It arrangement for performing ‗Vazoo‘.‖
is another thing that they cannot build a mosque by
On human and other images, the witness stated:
forcibly grabbing this debris.‖
―When any Muslim would build a mosque afresh,
PART H
then he would not get the picture of any living
108 being be it animal-bird or male-female or God-
Goddess, depicted inside it and if he does so, he
On the depiction of the images of human beings, would be an offender. However, it would still be
animals, birds or idols, the called a mosque if other ‗Sharayat‘ are observed.‖

witness stated: PART H

―If an Imam has the knowledge that pictures of 109

animals and birds, or idols, or statues of human

60
On whether a mosque can be constructed on the PART H
demolition of a building, the
110
witness stated:
xviii. Where bells are ringing or conch shells are
―It is true that according to ‗Ehkam‘ (sanction) of blown, prayer would not be offered.‖
the prophet, if any building is demolished and
mosque is built from its debris, then the same is 73. Mr Mishra, while placing reliance on the texts
‗Makruh‘ (not desirable).‖ of the Hadees sought to urge

(iii) Mohd Khalid Nadvi (PW-22) that there was a breach of the following cardinal
principles of Islamic law:
The witness stated:
(i) Azaan must be called at least twice a day;
―It is true that a mosque will not be constructed
by forcibly demolishing a place of worship (ii) A mosque must have a Vazoo or place for
belonging to any religion. Similarly it cannot be ablution;
constructed by forcibly capturing a place of
(iii) A mosque should not contain visual images of
worship belonging to any other religion.‖
idols, floral designs or
According to the witness, if a place of worship
the human form;
belonging to a particular religion is
(iv) No ringing of bells is permissible within the
demolished, it would remain a place of worship for
precincts of or in the area
that faith and if it was proved
surrounding the mosque;
that a temple on a disputed site was forcibly
demolished for the construction of a (v) On one plot of land, two religious places are
impermissible;
mosque, the temple would continue to be treated as
a temple: (vi) No preparation of food in a kitchen is
permissible in or in close
―It is correct to say that if a place of worship
belonging to a particular faith is demolished, it will proximity to a mosque;
remain to be a place of worship belonging to that
very faith. It is correct to say that a temple will not (vii) Land should not be usurped for the
lose its character and will remain to be a temple construction of a mosque; and
even if it is demolished to build a mosque. If any
mosque is demolished and a temple is constructed (viii) No graves should be situated in close-
in its place, the mosque will remain to be a proximity to a mosque.
mosque. If it is proved that there was a temple on
These submissions have been controverted by Mr
the disputed site forcibly demolishing which a
Mohd Nizamuddin Pasha,
mosque was constructed, then such a temple will
continue to be treated as a temple.‖ learned Counsel appearing on behalf of plaintiffs in
Suit 4, both in the course of
(iv) Sibte Mohd. Naqvi of the Shia sect (PW-25)
his oral arguments and in written submissions. Mr
According to the witness:
Pasha urged:
―vii. At one place, two separate buildings of
(i) On whether Vazoo is necessary in a mosque:
worship or two religions cannot exist. xv. Images,
portraits, pictures, idols etc. as also designed (a) Babri Masjid had a specific place ear-marked
garments having pictures are prohibited in a for ablution;
mosque. xvii. Musical instrument i.e. bell etc. is not
permissible in the mosque or in the vicinity thereof.

61
(b) In any event according to the Hadees, it is of being observed;
preferable to perform
(b) Mosques in the vicinity of temples and ringing
ablution at home before coming to the mosque; of bells was not

(c) The Hadees which have been cited state that unusual in India; and
bathing on Friday is a
(c) The Sufi idea of Islam is more accommodative
must or indicate how Vazoo is to be performed; of other faiths.

PART H (vii) As regards the presence of graves, the map

annexed to the plaint of 1885
111
shows that there are no graves in front of the
(ii) On whether pictures or depictions detract from western face of the mosque.
the character of a mosque:
The Hadees indicates that one should not offer
(a) The purpose of the prohibition is to ensure that namaz facing a grave; and
a worshipper is not
PART H
detracted from prayer;
112
(b) While a Muslim may claim that a picture is
interfering with prayer, an (viii) In any case what is or is not permissible in
relation to graves is heavily
outsider cannot claim that a prayer is makruh
because of the disputed with sufis and wahabis being on extreme
ends of the spectrum.
presence of images in the mosque; and
Finally, Mr Pasha argued that the concept of
(c) Pictures of lifeless things are not specifically ‗Makruh‘ means something which is
disapproved.
undesirable but not prohibited; this is a purely
(iii) As regards minarets: spiritual idea about what makes

(a) The first mosque of Islam neither had domes worship dearer to Almighty Allah.
nor minarets; and
Mr Pasha, while controverting the interpretation
(b) A large number of mosques including of the placed by Mr Mishra has
same period, do not
indicated that Mr Mishra has selectively relied
have minarets. upon certain aspects of the

(iv) On the presence of pillars /columns, there is no Hadees without reading the religious texts in their
absolute injunction; context and as a whole.

(v) There cannot be two qiblas in one land. This is 74. Justice Sudhir Agarwal observed that Babur, as
a misinterpretation of a the Emperor, had absolute

Hadees which means that a state cannot have two power as an independent sovereign:
religions;
―3389…The position of Babar, in our view, was
(vi) On the claim that there should not be any bells that of independent sovereign, Sole Monarch,
nearby: having paramount power. It was supreme,
uncontrollable and absolute, not answerable to
(a) In practical terms in a populated city, such an
anyone. Whether invader or anything else, the fact
injunction is incapable
remains that he had been the supreme authority in

62
the territory which he conquered. Nobody could ―3404…Whether Babar or Aurangzeb or anybody
have questioned him.‖ else, they were supreme authority. Whether their
action was consistent with the tenets of Islam or
The judge observed that ―Whether the building in not, in our view, is unchallengeable after so many
dispute is a mosque, treated to centuries particularly when those supreme
authorities were not subordinate to any system of
be a mosque, believed to be a mosque and
justice. Even otherwise, we cannot examine as to
practiced as a mosque‖ have to be
whether they rightly or wrongly constructed a place
decided not in terms of the tenets of the Shariat but terming it as mosque particularly when at least the
according to how people local people believe from the representation,
whatever it is, that the construction which has been
believed and conducted themselves over a length of made, is that of a mosque.‖
time. The High Court held
In the view of Justice Sudhir Agarwal:
that whether Muslims had used the mosque for
offering worship immediately after ―3405. Something which took place more than
200 and odd years, we are clearly of the view,
its construction had not been proved either way but cannot be a subject matter of judicial scrutiny of
there was evidence to this Court which is the creation of statute that came
into force in a system which itself was born after
indicate that Muslims had visited the mosque in more than hundred and odd years when the
order to offer namaz after the building in dispute might have been constructed.
All the expert religious witnesses have admitted
partition wall was set up in 1856-57. Whether
that if a mosque is constructed, the picture or
namaz was offered was not proved
images of living beings like human images or
PART H animal images shall not be allowed to remain
thereat. The creator of the building in dispute
113 thought otherwise, yet the followers of Islam did
not hesitate in using the premises for the purpose of
but it had been established that since 1857 until the Namaz. Whether the belief of such persons, who
last namaz was offered in the visited the premises for such worship, is superior or
inferior, whether such offering of Namaz was
inner courtyard on 16 December 1949, Muslims
regular or frequent or occasional and intermittent
had visited the mosque for
would be of no consequence. Suffice, if there had
worship. Hence, whether the building could be a been Namaz by the Muslim. The offering of
mosque in accordance with the worship by Hindus knowing the

tenets of the Shariat was of no significance since PART H

the conduct of those who
114
believed and worshipped would be the
building in dispute that it is a mosque is something
determinative factor for determining the
else but on that basis the manner in which the
nature and use of the property in question. The building in dispute has been known for the last
authority of Babur or Aurangzeb more than 250 years and odd cannot be changed.‖

(whoever constructed the mosque) was absolute The offering of prayer by Muslims though
and the court could not examine intermittently from 1860 uptill 16

whether the mosque had been constructed in December 1949 was in the view of the High Court
accordance with or contrary to the a matter of significance.

tenets of the Shariat: 75. Assailing the above view, it has been urged by
Mr Mishra that the

63
observations of the High Court are per incuriam an extreme interpretation of doctrine selectively
and that in terms of Section 3 of advanced by Mr Mishra. This

the Oudh Laws Act 1876, decisions on matters of Court, as a secular institution, set up under a
religious use or institutions constitutional regime must steer

have to be decided according to Islamic law or, as clear from choosing one among many possible
the case may be, according to interpretations of theological

Hindu law. doctrine and must defer to the safer course of

accepting the faith and belief of the
76. Essentially, the submissions which have been
urged before this Court worshipper.

require it to embark upon a journey into theological Above all, the practice of religion, Islam being no
doctrine and to apply the exception, varies according to

doctrine to deduce whether every one of the the culture and social context. That indeed is the
features prescribed by the Hadees strength of our plural society.

for the location or construction of a mosque have Cultural assimilation is a significant factor which
been fulfilled. shapes the manner in which

77. During the course of the submissions, it has religion is practiced. In the plural diversity of
emerged that the extreme and religious beliefs as they are

even absolute view of Islam sought to be portrayed practiced in India, cultural assimilation cannot be
by Mr P N Mishra does not construed as a feature

emerge as the only available interpretation of destructive of religious doctrine. On the contrary,
Islamic law on a matter of theology. this process strengthens and

Hence, in the given set of facts and circumstances, reinforces the true character of a country which has
it is inappropriate for this been able to preserve its

Court to enter upon an area of theology and to unity by accommodating, tolerating and respecting
assume the role of an interpreter a diversity of religious faiths

of the Hadees. The true test is whether those who and ideas. There can be no hesitation in rejecting
believe and worship have faith the submission made by Mr

in the religious efficacy of the place where they Mishra. Our Court is founded on and owes its
pray. The belief and faith of the existence to a constitutional order.

worshipper in offering namaz at a place which is We must firmly reject any attempt to lead the court
for the worshipper a mosque to interpret religious doctrine

PART H in an absolute and extreme form and question the

faith of worshippers. Nothing
115
would be as destructive of the values underlying
cannot be challenged. It would be preposterous for Article 25 of the Constitution.
this Court to question it on the
PART I
ground that a true Muslim would not offer prayer in
a place which does not meet 116

64
I. Places of Worship Act PART I

78. Parliament enacted the Places of Worship 117

(Special Provisions) Act 199133.
Section 3 enacts a bar on the conversion of a place
Sections 3, 6 and 8 of the legislation came into of worship of any religious
force at once on the date of
denomination or a section of it into a place of
enactment (18 September 1991) while the other worship of a different religious
provisions are deemed to have
denomination or of a different segment of the same
come into force on 11 July 1991. The long title religious denomination:
evinces the intent of Parliament in
―3. Bar of conversion of places of worship.—No
enacting the law, for it is: person shall convert any place of worship of any
religious denomination or any section thereof into a
―An Act to prohibit conversion of any place of place of worship of a different section of the same
worship and to provide for the maintenance of the religious denomination or of a different religious
religious character of any place of worship as it denomination or any section thereof.‖
existed on the 15th day of August, 1947, and for
matters connected therewith or incidental thereto.‖ Section 4 preserves the religious character of a
place of worship as it existed on
The law has been enacted to fulfil two purposes.
First, it prohibits the conversion 15 August 1947:

of any place of worship. In doing so, it speaks to ―4. Declaration as to the religious character of
the future by mandating that the certain places of worship and bar of jurisdiction of
courts, etc.—(1) It is hereby declared that the
character of a place of public worship shall not be religious character of a place of worship existing
altered. Second, the law seeks on the 15th day of August, 1947 shall continue to
be the same as it existed on that day. (2) If, on the
to impose a positive obligation to maintain the
commencement of this Act, any suit, appeal or
religious character of every place
other proceeding with respect to the conversion of
of worship as it existed on 15 August 1947 when the religious character of any place of worship,
India achieved independence existing on the 15th day of August, 1947, is
pending before any court, tribunal or other
from colonial rule. authority, the same shall abate, and no suit, appeal
or other proceeding with respect to any such matter
79. The expression ‗place of worship‘ is defined in shall lie on or after such commencement in any
Section 2(c) thus : court, tribunal or other authority: Provided that if
any suit, appeal or other proceeding, instituted or
―2(c) ―place of worship‖ means a temple,
filed on the ground that conversion has taken place
mosque, gurudwara, church, monastery or any
in the religious character of any such place after the
other place of public religious worship of any
15th day of August, 1947, is pending on the
religious denomination or any section thereof, by
commencement of this Act, such suit, appeal or
whatever name called.‖
other proceeding shall not so abate and every such
In Section 2(a), the Places of Worship Act provides suit, appeal or other proceeding shall be disposed
that the ―commencement of of in accordance with the provisions of sub-section
(1). (3) Nothing contained in sub-section (1) and
this Act‖ means the commencement on 11 July sub-section (2) shall apply to,— (a) any place of
1991. worship referred to in the said sub-sections which
is an ancient and historical monument or an
33 ―Places of Worship archaeological site or remains covered by the
Act‖ Ancient Monuments and Archaeological Sites and

65
Remains Act, 1958 (24 of 1958) or any other law offence shall be punishable with the punishment
for the time being in force; (b) any suit, appeal or provided for the offence. (3) Whoever abets, or is
other proceeding, with respect to any matter a party to a criminal conspiracy to commit, an
referred to in sub-section (2), finally decided, offence punishable under sub-section (1) shall,
settled or disposed of by a court, tribunal or other whether such offence be or be not committed in
authority before the commencement of this Act; consequence of such abetment or in pursuance of
such criminal conspiracy, and notwithstanding
PART I anything contained in section 116 of the Indian
Penal Code, be punishable with the punishment
118
provided for the offence.‖
(c) any dispute with respect to any such matter
PART I
settled by the parties amongst themselves before
such commencement; (d) any conversion of any 119
such place effected before such commencement by
acquiescence; (e) any conversion of any such place Section 7 confers upon the Places of Worship Act
effected before such commencement which is not overriding force and effect:
liable to be challenged in any court, tribunal or
other authority being barred by limitation under ―7. Act to override other enactments.—The
any law for the time being in force.‖ (Emphasis provisions of this Act shall have effect
supplied) notwithstanding anything inconsistent therewith
contained in any other law for the time being in
The Places of Worship Act however contains an force or any instrument having effect by virtue of
exemption from the application any law other than this Act.‖

of its provisions to the place of worship 80. The law imposes two unwavering and
―commonly known as Ram Janam Bhumi mandatory norms:

–Babri Masjid‖ and to any suit, appeal or (i) A bar is imposed by Section 3 on the conversion
proceeding relating to it. Section 5 of a place of worship of

stipulates: any religious denomination or a section of a

denomination into a place of
―5. Act not to apply to Ram Janma Bhumi-Babri
Masjid.— Nothing contained in this Act shall apply worship either of a different section of the same
to the place or place of worship commonly known religious denomination or
as Ram Janma Bhumi-Babri Masjid situated in
Ayodhya in the State of Uttar Pradesh and to any of a distinct religious denomination. The
suit, appeal or other proceeding relating to the said expression ‗place of worship‘ is
place or place of worship.‖
defined in the broadest possible terms to cover
Section 6 provides for a punishment of three years‘ places of public religious
imprisonment and a fine for
worship of all religions and denominations; and
contravening the provisions of Section 3 and for an
(ii) The law preserves the religious character of
attempt or act of abetment:
every place of worship as it
―6. Punishment for contravention of section 3.—
existed on 15 August 1947. Towards achieving this
(1) Whoever contravenes the provisions of section
purpose, it provides for
3 shall be punishable with imprisonment for a term
which may extend to three years and shall also be the abatement of suits and legal proceedings with
liable to fine. (2) Whoever attempts to commit any respect to the
offence punishable under sub-section (1) or to
cause such offence to be committed and in such conversion of the religious character of any place
attempt does any act towards the commission of the of worship existing on 15

66
August 1947. Coupled with this, the Places of commencement of the Act in respect of which the
Worship Act imposes a bar cause of

on the institution of fresh suits or legal action would be barred by limitation.

proceedings. The only exception is
Section 5 stipulates that the Act shall not apply to
in the case of suits, appeals or proceedings pending Ram Janmabhumi – Babri
at the
Masjid and to any suit, appeal or any proceeding
commencement of the law on the ground that relating to it. Consequently,
conversion of a place of
there is a specific exception which has been carved
worship had taken place after 15 August 1947. The out by the provisions of the
proviso to sub-section
Places of Worship Act in respect of the present
(2) of Section 4 saves those suits, appeals and legal dispute.
proceedings which
The intention of Parliament
are pending on the date of the commencement of
the Act if they pertain to 81. The purpose of enacting the law was explained
by the Union Minister of
the conversion of the religious character of a place
of worship after the cut Home Affairs on the floor of the Lok Sabha on 10
September 199134:
PART I
―We see this Bill as a measure to provide and
120 develop our glorious traditions of love, peace and
harmony. These traditions are part of a cultural
off date. Sub-Section (3) of Section 4 however heritage of which every Indian is justifiably proud.
stipulates that the previous Tolerance for all faiths has
34 Lok Sabha Debates, Volume V, nos 41-49, page
two sub-sections will not apply to:
448
(a) Ancient and historical monuments or
PART I
archaeological sites or
121
remains governed by Act 24 of 1958 or any other
law; characterized our great civilization since time
immemorial. These traditions of amity, harmony
(b) A suit or legal proceeding which has been
and mutual respect came under severe strain during
finally decided
the pre-independence period when the colonial
settled or disposed of; power sought to actively create and encourage
communal divide in the country. After
(c) Any dispute which has been settled by the independence we have set about healing the
parties before the wounds of the past and endeavoured to restore our
traditions of communal amity and goodwill to their
commencement of the Act; past glory. By and large we have succeeded,
although there have been, it must be admitted,
(d) A conversion of a place of worship effected
some unfortunate setbacks. Rather than being
before the
discouraged by such setbacks, it is our duty and
commencement of the Act by acquiescence; and commitment to taken lesson from them for the
future.‖ (Emphasis supplied)
(e) Any conversion of a place of worship before the
The Union Minister of Home Affairs indicated that
the law which sought to prohibit

67
the forcible conversion of places of worship was stating:
not ―to create new disputes and
―I believe that India is known for its civilization
to rake up old controversies which had long been and the greatest contribution of India to the world
forgotten by the people…but civilization is the kind of tolerance, understanding,
the kind of assimilative spirit and the cosmopolitan
facilitate the object sought to be achieved‖35. outlook that it shows… The Advaita philosophy…
Speaking in support of the cut-off clearly says that there is no difference between God
and ourselves. We have to realize that God is not in
date of 15 August 1947, one of the Members
the mosque or in the temple only, but God is in the
(Shrimati Malini Bhattacharya)
heart of a person… Let everybody understand that
explained36: he owes his allegiance to the Constitution,
allegiance to the unity of the country: the rest of the
―But I think this August 15, 1947 is crucial things are immaterial.‖
because on that date we are supposed to have
emerged as a modern, democratic and sovereign In providing a guarantee for the preservation of the
State thrusting back such barbarity into the past religious character of places
once and for all. From that date, we also
of public worship as they existed on 15 August
distinguished ourselves…as State which has no
1947 and against the conversion
official religion and which gives equal rights to all
the different religious denominations. So, whatever of places of public worship, Parliament determined
may have happened before that, we all expected that independence from
that from that date there should be no such
retrogression into the past.‖ colonial rule furnishes a constitutional basis for
(Emphasis supplied) healing the injustices of the past

82. The Places of Worship Act which was enacted by providing the confidence to every religious
in 1991 by Parliament community that their places of

protects and secures the fundamental values of the worship will be preserved and that their character
Constitution. The Preamble will not be altered. The law

underlines the need to protect the liberty of addresses itself to the State as much as to every
thought, expression, belief, faith and citizen of the nation. Its norms

35 Lok Sabha Debates, bind those who govern the affairs of the nation at
Volume V, nos 41-49, page 448 36 Lok Sabha every level. Those norms
Debates, Volume V, nos 41-49, pages 443-444
implement the Fundamental Duties under Article
PART I 51A and are hence positive

122 mandates to every citizen as well. The State, has by

enacting the law, enforced a
worship. It emphasises human dignity and
fraternity. Tolerance, respect for and constitutional commitment and operationalized its
constitutional obligations to
acceptance of the equality of all religious faiths is a
fundamental precept of uphold the equality of all religions and secularism
which is a part of the basic
fraternity. This was specifically adverted to by the
Union Minister of Home Affairs 37 Rajya Sabha Debates,
Volume CLX, nos 13-18, pages 519-520 and 522
in the course of his address before the Rajya
Sabha37 on 12 September 1991 by PART I

68
123 38 (1994) 3 SCC 1

features of the Constitution. The Places of Worship PART I

Act imposes a non-derogable
124
obligation towards enforcing our commitment to
secularism under the Indian The Places of Worship Act is intrinsically related
to the obligations of a secular
Constitution. The law is hence a legislative
instrument designed to protect the state. It reflects the commitment of India to the
equality of all religions. Above all,
secular features of the Indian polity, which is one
of the basic features of the the Places of Worship Act is an affirmation of the
solemn duty which was cast
Constitution. Non-retrogression is a foundational
feature of the fundamental upon the State to preserve and protect the equality
of all faiths as an essential
constitutional principles of which secularism is a
core component. The Places of constitutional value, a norm which has the status of
being a basic feature of the
Worship Act is thus a legislative intervention
which preserves non-retrogression Constitution. There is a purpose underlying the
enactment of the Places of
as an essential feature of our secular values.
Worship Act. The law speaks to our history and to
Secularism as a constitutional value the future of the nation.

83. In a nine judge Bench decision of this Court in Cognizant as we are of our history and of the need
S R Bommai v Union of for the nation to confront it,

India38, Justice B P Jeevan Reddy held: Independence was a watershed moment to heal the
wounds of the past.
―304…How are the constitutional promises of
social justice, liberty of belief, faith or worship and Historical wrongs cannot be remedied by the
equality of status and of opportunity to be attained people taking the law in their own
unless the State eschews the religion, faith or belief
of a person from its consideration altogether while hands. In preserving the character of places of
dealing with him, his rights, his duties and his public worship, Parliament has
entitlements? Secularism is thus more than a
mandated in no uncertain terms that history and its
passive attitude of religious tolerance. It is a
wrongs shall not be used as
positive concept of equal treatment of all religions.
This attitude is described by some as one of instruments to oppress the present and the future.
neutrality towards religion or as one of benevolent
neutrality. This may be a concept evolved by 84. The observations made on the Places of
western liberal thought or it may be, as some say, Worship Act by Justice D V
an abiding faith with the Indian people at all points
of time. That is not material. What is material is Sharma are contrary to the scheme of the law as
that it is a constitutional goal and a basic feature of they are to the framework of
the Constitution as affirmed in Kesavananda
constitutional values. Justice D V Sharma observed
Bharati [Kesavananda Bharati v. State of Kerala,
as follows:
(1973) 4 SCC 225 : 1973 Supp SCR 1] and Indira
N. Gandhi v. Raj Narain [1975 Supp SCC 1 : ―1 (c). Section 9 is very wide. In absence of any
(1976) 2 SCR 347] . Any step inconsistent with this ecclesiastical Courts any religious dispute is
constitutional policy is, in plain words, cognizable, except in very rare cases where the
unconstitutional.‖ declaration sought may be what constitutes

69
religious rite. Places of Worship (Special proviso to sub-section (2) is where a suit, appeal or
Provisions) Act, 1991 does not debar those cases proceeding is instituted on
where declaration is sought for a period prior to the
Act came into force or for enforcement of right the ground that the conversion of the religious
which was recognized before coming into force of character of a place of worship
the Act.‖
had taken place after 15 August 1947 and such an
The above conclusion of Justice D V Sharma is action was pending at the
directly contrary to the provisions
commencement of the Places of Worship Act.
of Section 4(2). Justice D V Sharma postulates in Clearly, in the face of the statutory
the above observations that the
mandate, the exception which has been carved out
PART I by Justice D V Sharma runs

125 contrary to the terms of the legislation and is

therefore erroneous.
Places of Worship Act will not debar cases of the
following nature being

entertained namely: PART J

(i) Where a declaration is sought for a period prior 126

to the enforcement of the
J. Juristic Personality
Places of Worship Act; or
J.1 Development of the law
(ii) Where enforcement is sought of a right which
was recognised before the 86. At the heart of the legal dispute in the present
batch of appeals is the
enforcement of the Places of Worship Act.
question whether the first and second plaintiff in
85. Section 4(1) clearly stipulates that the religious Suit 5 - ―Bhagwan Sri Ram
character of a place of
Virajman‖ and ―Asthan Sri Ram Janam Bhumi,
worship as it existed on 15 August 1947 shall be Ayodhya‖, possess distinct legal
maintained as it existed on that
personalities or, in other words, are ―juristic
day. Section 4(2) specifically contemplates that all persons‖. Courts in India have held
suits, appeals and legal
that Hindu idols are legal persons. The meaning
proceedings existing on the day of the and significance of this doctrine
commencement of the Places of Worship
will be examined over the course of this judgement.
Act, with respect to the conversion of the religious At this juncture it is
character of a place of
necessary to note that the legal personality of the
worship, existing on 15 August 1947, pending first plaintiff in Suit 5 (‗Bhagwan
before any court, tribunal or
Sri Ram Virajman‘) as represented by the physical
authority shall abate, and no suit, appeal or idols of Lord Ram at the
proceeding with respect to such
disputed site is not contested by any of the parties.
matter shall lie after the commencement of the Act. Whether the second plaintiff
The only exception in the
(‗Asthan Sri Ram Janam Bhumi‘) is a juristic
person has however been the

70
subject of controversy in the oral proceedings system. The ability to create or recognise legal
before us. persons has always varied

87. The present case requires us to answer two depending upon historic circumstances. The power
important questions: First, of legal systems to recognise

what are the exact contours of the legal personality and hence also to deny legal personality has been
ascribed to a Hindu idol? In used over history to wreak

other words, to what extent is the artificial legal fundamental breaches of human rights. Roscoe
personality ascribed by courts to Pound alludes to this in the

a Hindu idol akin to the legal personality of a following passage in ―Jurisprudence‖:

natural person? Second, can
―In civilised lands even in the modern world it has
property of a corporeal nature (in this case land) be happened that all human beings were not legal
ascribed a distinct legal persons. In Roman law down to the constitution of
Antonius Pius the slave was not a person. He
personality? To answer these questions, it is enjoyed neither rights of family nor rights of
necessary to understand both the patrimony. He was a thing, and as such like
animals, could be the object of rights of property.
true purpose underlying the legal innovation of
… In French colonies, before slavery was there
recognising or conferring legal
abolished, slaves were put in the class of legal
personality and why courts have conferred legal persons by the statute of April 23, 1833 and
personality on Hindu idols. obtained a ‗somewhat extended juridical capacity‘
by a statute of 1845. In the United States down to
PART J the Civil War, the free Negroes in many of the
States were free human beings with no legal
127 rights.‖39

The legal subject: recognising rights, entitlements, 39 Roscoe Pound,

duties and liabilities Jurisprudence, Part IV, 1959 Edition

88. The foundational principle of a legal system is PART J

that it must recognise the
128
subjects it seeks to govern. This is done by the law
recognising distinct legal units Pound‘s observations were extracted by this Court
in Shiromani Gurdwara
or ‗legal persons‘. To be a legal person is to be
recognised by the law as a Prabandhak Committee, Amritsar v Som Nath
Dass40 where a two judge
subject which embodies rights, entitlements,
liabilities and duties. The law may Bench of this Court had to determine whether the
―Guru Granth Sahib‖
directly regulate the behaviour of legal persons and
their behaviour in relation to possessed a legal personality. While discussing
‗who is a legal person‘ Justice A
each other. Therefore, to be a legal person is to
possess certain rights and duties P Misra observed:

under the law and to be capable of engaging in ―11. …If we trace the history of a ―person‖ in the
legally enforceable relationships various countries we find surprisingly it has
projected differently at different times. … 13.
with other legal persons. Who or what is a legal With the development of society, where an
person is a function of the legal individual‘s interaction fell short, … cooperation of

71
a larger circle of individuals was necessitated. well documented. Salmond in his work titled
Thus, institutions like corporations and companies ―Jurisprudence‖ notes:
were created, to help the society in achieving the
desired result. The very constitution of a State, ―Conversely there are, in the law, persons who are
municipal corporation, company etc. are all not men. A joint-stock company or a municipal
creations of the law and these ―juristic persons‖ corporation is a person in legal contemplation. It is
arose out of necessities in the human development. true that it is only a fictitious, not a real person; but
In other words, they were dressed in a cloak to be it is not a fictitious man. It is personality, not
recognised in law to be a legal unit.‖ human nature, that is fictitiously attributed by the
law to bodies corporate.
89. Legal systems across the world evolved from
periods of darkness where So far as legal theory is concerned, a person is any
being whom the law regards as capable of rights
legal personality was denied to natural persons to and duties. Any being that is so capable is a person,
the present day where in whether a human being or not, and no being that is
not so capable is a person, even though he be a
constitutional democracies almost all natural man. Persons are the substance of which rights and
persons are also legal persons in duties are the attributes. It is only in this respect
that persons possess juridical significance, and this
the eyes of the law. Legal systems have also
is the exclusive point of view from which
extended the concept of legal
personality receives legal recognition.
personality beyond natural persons. This has taken
But we may go one step further than this in the
place through the creation of
analysis. No being is capable of rights, unless also
the ‗artificial legal person‘ or ‗juristic person‘, capable of interests which may be affected by the
where an object or thing which is not acts of others. For every right involves an
underlying interest of this nature. Similarly no
a natural person is nonetheless recognised as a being is capable of duties, unless also capable of
legal person in the law. Two acts by which the interests of others may be
affected. To attribute rights and duties, therefore, is
examples of this paradigm are, where a collection to attribute interests and acts as their necessary
of natural persons is bases. A person, then, may be defined for the
purposes of the law, as any being to whom the law
collectively conferred a distinct legal personality
attributes a capability of interests and therefore of
(in the case of a cooperative
rights, of acts and therefore of duties.‖41 (Emphasis
society or corporation) and where legal personality supplied)
is conferred on an inanimate
90. A legal person possesses a capability to bear
object (in the case of a ship). The conferral of legal interests, rights and duties.
personality on things other
Salmond makes a crucial distinction between legal
40 (2000) 4 SCC 146 personality and the physical

PART J corpus on which legal personality is conferred:

129 ―The law, in creating persons, always does so by

personifying some real thing. Such a person has to
than natural persons is a legal development which this extent a real existence, and it is his personality
is so well recognised that it alone that is fictitious. There is, indeed, no
theoretical necessity for this, since the law might, if
receives little exposition by courts today. The legal it so pleased, attribute the quality of
development is nonetheless 41 J W Salmond, Jurisprudence, Steven and
Haynes (1913)

72
PART J courts are called upon to consider conferring legal
personality on such objects or
130
collectives.
personality to a purely imaginary being, and yet
attain the ends for which this fictitious extension of 42 J.W. Salmond,
personality is devised. Personification, however, Jurisprudence, Steven and Haynes (1913)
conduces so greatly to simplicity of thought and
speech, that its aid is invariably accepted. The thing PART J
personified may be termed the corpus of the legal
131
person so created; it is the body into which the law
infuses the animus of a fictitious personality. … 91. At a purely theoretical level, there is no
Legal persons, being the arbitrary creations of the restriction on what legal personality
law, may be as of as many kinds as the law pleases.
Those which are actually recognised by our own may be conferred. What is of significance is the
system, however, all fall within a single class, purpose sought to be achieved
namely corporations or bodies corporate. A
corporation is a group or series of persons which by by conferring legal personality. To the extent that
a legal fiction is regarded and treated as itself a this purpose is achieved, legal
person. If, however, we take account of other
personality may even be conferred on an abstract
systems of our own, we find that the conception of
idea. However, Salmond
legal personality is not so limited in its
application…‖42 (Emphasis supplied) notes that legal personality is usually conferred on
objects which are already the
Legal personality is not human nature. Legal
personality constitutes recognition subject of personification or anthropomorphisms in
layman‘s language out of
by the law of an object or corpus as an embodiment
of certain rights and duties. ―simplicity for thought and speech‖. The question
whether legal personality is
Rights and duties which are ordinarily conferred on
natural persons are in select conferred on a ship, idol, or tree is a matter of what
is legally expedient and the
situations, conferred on inanimate objects or
collectives, leading to the creation of object chosen does not determine the character of
the legal personality
an artificial legal person. An artificial legal person
is a legal person to the extent conferred. The character of the legal personality
conferred is determined by the
the law recognises the rights and duties ascribed to
them, whether by statute or purpose sought to be achieved by conferring legal
personality. There is thus a
by judicial interpretation. Salmond presciently
notes that the rights and duties distinction between legal personality and the
physical corpus which then comes
conferred on artificial legal persons ultimately
represent the interests and benefits to represent the legal personality. By the act of
conferring legal personality, the
of natural persons. In fact, it is precisely because of
the substantial benefits corpus is animated in law as embodying a distinct
legal person possessing
derived by natural persons from such objects or
collectives that legislators and certain rights and duties.

73
92. By conferring legal personality, legal systems corporations - in the fifteenth century, an
have expanded the definition understanding of the legal nature of the corporation
was already substantially in place. ... With this
of a ‗legal person‘ beyond natural persons. Juristic history before them, Sir Edward Code, writing in
persons so created do not the beginning of the seventeenth century; ... and
Blackstone and Kyd, writing in the late eighteenth
possess human nature. But their legal personality
century, could confidently assert what the
consists of the rights and
corporation was, how it was created, and what legal
duties ascribed to them by statute or by the courts attributes flowed from its organization. While they
to achieve the purpose sought had primarily ecclesiastical and municipal
corporations in mind, their commentary fully
to be achieved by the conferral of such personality. applied to business corporations as well.‖43
It is important to understand (Emphasis supplied)

the circumstances in which legal personality has The jurisprudential concept of treating a collective
been conferred and of entrepreneurs as a single

consequently the rights and duties ascribed to the unit for the purposes of legal recognition was
inanimate objects on which already well established by the time

this conferment takes place. the first business corporations came into existence
and did not warrant
PART J
examination by the courts. The author further
132 states:

The Corporation 43 Phillip Blumberg,

The Multinational Challenge to Corporation Law :
93. The most widely recognised artificial legal
The Search for New Corporate Personality, Oxford
person is the corporation in
University Press (1993), at page 3
Company law. However, for the purposes of
PART J
understanding the circumstances
133
under which courts have conferred legal
personality, the example of the ―Until well into the nineteenth century,
recognition of a corporation for business purposes,
corporation is of limited use. The idea of treating a
both in England and in the United States, required a
collective of individuals as a
specific governmental decision to grant corporate
single unit for the purposes of identification in law status. In England, this took the form of a character
is as old as human civilisation from the Crown or an act of Parliament. In the
United States it required a legislative act. ... With
itself. There exists a plethora of examples of such the universal triumph of general incorporation
recognition scattered across statutes more than a century ago, corporations
could be formed simply by filing certain forms and
human history with the advent of guilds, paying certain fees and taxes. The state's role has
partnerships and early unincorporated shrunken dramatically to a general specification of
procedures and a ministerial administrative
businesses. As Phillip Blumberg notes in his book
acknowledgement of the incorporators' compliance
titled ―The Multinational
with statutory formalities.‖44 (Emphasis supplied)
Challenge to Corporation Law‖:
The independent legal personality of a corporation
―When the Crown finally began to charter craft has never been dependent on
guilds and trading companies - the first business

74
recognition by courts. The legal personality of the Jessel MR explained this in The City of Mecca45,
corporation was originally where he observed:

granted by a positive act of the government. In later ―You may in England and in most countries
years, as incorporation proceed against the ship. The writ may be issued
against the owner of such a ship, and the owner
became the preferred method of doing business, may never appear, and you get your judgement
corporate personality was against the ship without a single person being
named from beginning to end. That is an action in
conferred by general statutes of incorporation
rem, and it is perfectly well understood that the
which permitted any person to
judgement is against the ship.‖
incorporate a company subject to the satisfaction of
D R Thomas in his book titled ―Maritime
certain statutory conditions.
Liens‖46 traces the history of the judicial
These historical developments outline the departure
conferment of legal personality on ships. He speaks
from a positive act of the
of two theories- the
government as the basis of corporate personality, to
‗personification theory‘ and the ‗procedural
the creation of statutory
theory‘ in explaining the evolution of
frameworks within which it was conferred. It does
the concept:
not, however, outline the
―The first [theory], commonly coined as the
reasons underlining the conferral of legal
personification theory, traces the historical origin
personality and is of little assistance in
and development of maritime liens to the juristic
the present situation. technique, which has obtained since medieval
times, of ascribing personality to a ship. Under this
The Ship theory a ship is personified and regarded as a
distinct juristic entity with a capacity to contract
94. A more pertinent example for the present and commit torts. The ship is both the source and
purposes is the conferment of limit of liability. … The second theory, known as
the procedural theory, is based on the premise that
legal personality on a ship. The concepts of a
maritime liens evolved out of the process of arrest
maritime lien and of actions in rem
of a vessel in order to compel the appearance of the
44 Phillip Blumberg, res owner and to obtain a security. … Although the
The Multinational Challenge to Corporation Law : point is not free of uncertainty it is probably the
The Search for New Corporate Personality, Oxford case that a maritime lien is a substantive right
University Press (1993), at page 22 whereas a statutory right of action in rem is in
essence a procedural remedy. The object behind the
PART J availability of a statutory right

134 45 The City of Mecca

(1881) 5 P.D. 106 46 D R Thomas, Maritime Liens
are established precepts of maritime law. A in British Shipping Laws: Volume 14 (Steven &
maritime lien may arise in the case of Sons London 1980)

a wrongdoing or damage caused by a ship which PART J

gives the claimant a charge on
135
the ‗res‘ of the ship. The charge is crystallised by
an ‗action in rem‘ under which of action in rem is to enable a claimant to found a
jurisdiction and to provide the res as security for
the ship is directly proceeded against, as a legal the claim.‖47 (Emphasis
person. In 1881, Sir George supplied)

75
 95. There is a direct nexus between the conferral Shipping Laws: Volume 14 (Steven & Sons
of a limited legal personality London 1980), at pages 7 and 38 48 1993 Supp (2)
SCC 433
and the adjudicative utility achieved by the
conferral. Courts treat the physical PART J

property of the ship as a legal person against which 136

certain actions may be taken.
cases administers remedies in rem, i.e., against the
Conferring legal personality on the ship allows for property, as well as remedies in personam, i.e.,
actions to be taken against the party personally…‖ (Benedict, The Law
of American Admiralty, 6th ed., Vol. I p. 3.)
independent of the availability or presence of the
ship‘s owners, who in a great 45. Admiralty Law confers upon the claimant a
right in rem to proceed against the ship or cargo as
many cases may be in other parts of the world. As a distinguished from a right in personam to proceed
ship may only be in port for against the owner. The arrest of the ship is regarded
as a mere procedure to obtain security to satisfy
a brief period, an action in rem allows the claimant
judgement….‖ (Emphasis supplied)
to ensure pre-judgement
In this view, the conferral of legal personality on a
security. Thus, even absent an express
ship sub-served the purpose of
personification, actions against the ship
business certainty and expediency. The decree
as a legal person ensure the effective adjudication
against the ship binds all
of admiralty disputes.
interested in her, and despite her nomadic nature,
96. In M V Elisabeth v Harwan Investment and
satisfies the requirement of
Trading Pvt Ltd.48, this
ensuring pre-judgment security. Besides the UK
Court noticed the underlying basis of this principle
and India, the attribution of legal
of Admiralty law. Justice
personality to ships has been used extensively
Thommen, speaking for a two judge Bench traced
across jurisdictions. Illustrating
the exercise of admiralty
the approach of American courts, Professor
jurisdiction by English courts:
Douglas Lind traces the evolution of
―44. …The vital significance and the
the concept:
distinguishing feature of an admiralty action in rem
is that this jurisdiction can be assumed by the ―As the United States entered its first century, the
coastal authorities in respect of any maritime claim greater part of the nation's trade and commerce, as
by arrest of the ship, irrespective of the nationality well as much of the general transportation of
of the ship or that of its owners, or the place of persons, occurred on the high seas or along the
business or domicile or residence of its owners or country‘s abundant inland navigable waterways.
the place where the cause of action arose wholly or The constitution had extended the federal judicial
in part.‖ power to all cases of admiralty and maritime
jurisdiction. … [The Brig James Wells v United
―…In admiralty the vessel has a juridical
States] case raised what was quickly becoming a
personality, an almost corporate capacity, having
common issue: whether an American registered
not only rights but liabilities (sometimes distinct
vessel should be condemned for violating a federal
from those of the owner) which may be enforced
law. The Court held the Brig's condemnation
by process and the decree against the vessel,
inevitable. Noteworthy is the fact that while the
binding upon all interested in her and conclusive
case was styled in the name of the vessel, neither
upon the world, for admiralty in appropriate
the term 'maritime lien' nor 'in rem, appears, and
47 D R Thomas, Maritime Liens in British

76
there is no suggestion that the ship itself, rather and gave it legal significance by conferring legal
than those in charge of it, was the offender … The personality on vessels within
practice of naming an action against a vessel did
not, however, attest to the idea of vessel their jurisdiction. Significantly, the existing law of
personification. The Court treated actions styled agency was ill equipped to deal
against a vessel as including everyone with an
with the unique features of Admiralty Law.
interest in her as ―a party to the suit.‖ …
Allowing actions against ships then
PART J
created a vehicle through which the obligations of
137 those with an interest in the

Numerous cases had troubled the federal courts ships and her actions, though outside the
regarding enforcement of liens when the principals jurisdiction of courts, would be fulfilled
(owners, masters) with interests in a ship had no
by the recognition by the law of the personality of
active role or prior knowledge of the wrongdoing
the maritime vessel. Perhaps
alleged. Traditional law of agency, with the ship as
agent, worked against a coherent rule of even more so than in the case of English admiralty
responsibility and recovery … Given the peculiar courts, the American
vitalism of the ship in lore, literature, and poetry, it
took only a slight conceptual shift in the legal mind 49 Douglas Lind,
for the federal courts to assume the ―mental Pragmatism and Anthropomorphism: Reconceiving
mode‖ of adaptation to [the] reality of the vitalism the Doctrine of the Personality of the Ship, 22
of the ship. The doctrine gave the courts the U.S.F. Mar. L.J. 39 (2009) at page 91
―control of the environment‖ over maritime law
that they had been lacking … with the doctrine of PART J
the personality of the ship, the Supreme Court
138
inverted the relationship of agency, making the
ship the principal rather than the agent. In this way, experience demonstrates that the conferral of legal
the ―desirable consequences‖ of a coherent, personality on ships was a
workable admiralty jurisdiction seemed possible.
The doctrine of the personality of the ship, that is, result of historical circumstances, shortcomings in
became a central hallmark of nineteenth century the existing law and the need
American admiralty law because it appeared to the
Supreme Court ―to be good in the way of belief‖ of courts to practically and effectively adjudicate
… The idea originated in the practical efforts of the upon maritime claims. Over the
Supreme Court, especially Justices Marshall and
course of several cases, the American Supreme
Story, to meet critical social and political needs of
Court solved the practical
the new American republic.‖49 (Emphasis
supplied) difficulties of attribution and agency by making the
ship a distinct legal person for
97. The experience of American courts was that
owners of offending ships the purposes of adjudicating maritime claims.
regularly avoided the jurisdiction of courts. The History, necessity and convenience
existing law of the day was
98. These observations are true even beyond the
inadequate to address the situation. The judges of realm of admiralty law.
the American Supreme Court
Bryant Smith in a seminal article titled ―Legal
therefore utilised the existing non-legal practice of Personality‖ published in 1928 in
anthropomorphising the ship
the Yale Law Journal50 states that ordinarily, the
subjects of rights and duties are

77
natural persons. However, he goes on to note that: principle but is an outcome of historical
circumstances, legal necessity and
―… for some reason or other, it becomes
necessary or convenient to deal with an inanimate convenience. Historical circumstances require
object such as a ship, or with a human being in a courts to adjudicate upon unique
multiple capacity, as a trustee or a guardian, or with
an association of human beings in a single capacity, factual situations. In American admiralty law, the
as a partnership or a corporation. A merchant, for increase in maritime expeditions
example, who has furnished supplies for a voyage,
coupled with the conferral of admiralty jurisdiction
or a boss stevedore who has renovated the ship,
on the United States Supreme
cannot reach the owner of the vessel, who is
outside the jurisdiction. The obvious solution is to Court led to an influx of cases involving maritime
get at the ship itself and, through it, satisfy the claims. The existing law of the
owner's obligations. But to devise a new system of
jurisprudence for the purpose, to work out new day did not allow the court to effectively adjudicate
forms and theories and processes, would too upon these new claims,
severely tax the ingenuity of the profession. The
alternative is for the judges to shut their eyes to the leading to inequitable, absurd or perverse
irrelevant differences between a ship and a man outcomes. Hence, legal innovation was
and to treat the ship as if it were a man for the
resorted to by courts. Both Lind and Smith
purpose of defending a libel. … It is true, of course,
highlighted several problems arising
that the benefits and burdens of legal personality in
other than human subjects, on ultimate analysis, from the uniqueness of the ship itself – a vessel
result to human beings, which, we have no doubt, travelling across multiple
is what the writers above cited mean. But the very
utility of the concept, particularly in the case of jurisdictions, whose owners may reside in
corporate 50 Bryant jurisdictions other than those where
Smith, Legal Personality, 37 Yale L.J. (1928) at
pages 287, 295 and 296 they are sought to be acted against and have little
knowledge of, or control, over
PART J
the operation of the ship. The conferral of legal
139 personality on the ship did not

personality, lies in the fact that it avoids the change the behaviour of the ship. It however
necessity for this ultimate analysis. … But, though created a legal framework within
the function of legal personality, as the quotation
suggests, is to regulate behaviour, it is not alone to which the interactions between natural persons and
regulate the conduct of the subject on which it is the ship could be regulated
conferred; it is to regulate also the conduct of
to achieve outcomes at a societal level which are
human beings toward the subject or toward each
satisfactory and legally sound.
other. It suits the purposes of society to make a ship
a legal person, not because the ship's conduct will PART J
be any different, of course, but because its
personality is an effective instrument to control in 140
certain particulars the conduct of its owner or of
other human beings.‖ (Emphasis supplied) 99. Both authors note that the existing
personification of the ship required
The above extract affirms Salmond‘s observations
that the choice of corpus (i.e. courts to make but a small conceptual leap of faith,
which resulted in significant
the object) on which legal personality is conferred
is not based on strict legal legal benefits for courts. This point is of greater
historical than legal significance

78
for it cannot be stated that where there is no between artificial and natural persons where it was
personification of an object, a court not relevant. The conferral of

is barred from conferring legal personality. PART J

Arguably, the independent legal
141
personality conferred on a corporation by acts of
the state involved a far greater legal personality was thus a tool of legal necessity
and convenience. Legal
conceptual leap. Yet it was deemed necessary and
has since crystallised into a personality does not denote human nature or human
attributes. Legal personality
foundational principle in the law of corporations.
is a recognition of certain rights and duties in law.
100. There exists another reason to confer legal An object, even after the
personality. Objects represent
conferral of legal personality, cannot express any
certain interests and confer certain benefits. In the will but it represents certain
case of some objects, the
interests, rights, or benefits accruing to natural
benefits will be material. The benefit may extend persons. Courts confer legal
beyond that which is purely
personality to overcome shortcomings perceived in
material. An artificial legal person, whether a ship the law and to facilitate
or a company cannot in fact
practical adjudication. By ascribing rights and
enjoy these benefits. The ultimate beneficiaries of duties to artificial legal persons
such benefits are natural
(imbued with a legal personality), the law tackles
persons. However, requiring a court, in every case, and fulfils both necessity and
to make the distinction
convenience. By extension, courts ascribe legal
between the artificial legal person and the natural personality to effectively
persons deriving benefit from
adjudicate upon the claims of natural persons
such artificial person is inordinately taxing, deriving benefits from or affected
particularly when coupled with the
by the corpus upon which legal personality is
increasing use of corporations and ships. This leads conferred. The corollary of this
us to the third rationale for
principle is that the rights ascribed by courts to the
conferring legal personality - convenience. The corpus are limited to those
conferral of legal personality on
necessary to address the existing shortcomings in
objects has historically been a powerful tool of the law and efficiently
policy to ensure the practical
adjudicate claims.
adjudication of claims. By creating a legal
framework, it equipped the court with 101. This principle is concisely articulated by
Phillip Blumberg:
the tools necessary to adjudicate upon an emerging
class of disputes. It saved ―Distinguished by their particular legal rights and
responsibilities, each class of legal unit is unique.
considerable judicial effort and time by allowing They include legal subjects as disparate as
judges to obviate the distinction individuals, maritime vessels, physical objects,
partnerships, associations, special accounts, funds,
economic interest groupings, and governmental

79
agencies, as well as the corporation and the which such legal personality was conferred. The
corporate group. In each case, the attribution of limits or boundaries of the rights
rights and responsibilities demarcating the
perimeters of legal recognition of the unit reflects ascribed to the new legal person must be guided by
all the factors that underlie societal lawmaking: the the reasons for conferring
historical development of the law, changing values
legal personality. The parameters of judicial
and interests, socio-economic and political forces,
innovation are set by the purpose for
and conceptual currents.
which the judge innovates. An example of this is
There are certain fundamental points. First, neither
when courts lift the veil of
legal rights nor legal units exist ―in the air‖. Legal
rights must pertain to a legal unit that can exercise corporate personality where the conferral of an
them. Further, there can be no comprehensive list independent legal personality no
of legal rights and responsibilities that
automatically springs into existence longer serves the above goals. The application of
the doctrine is defined by its
PART J
ability to serve the object underlying its creation.
142 The legal innovation will become
upon recognition of a particular subject as a legal unruly if courts were to confer legal personality on
unit. Quite the contrary. It is the recognition of an object and subsequently
particular rights and responsibilities (principally
rights) – one by one – that shapes the juridical enlarge the object‘s rights to the point where the
contours of the legal unit for which they have been original goal of intelligible and
created.
51 Phillip Blumberg,
When the law recognises a particular right or The Multinational Challenge to Corporation Law
imposes a particular responsibility on a (Oxford University Press 1993), at page 207
presumptive legal unit, this constitutes recognition
as a legal unit to the extent of the attribution. Other PART J
rights and responsibilities may or may not exist,
143
depending on whether such recognition of the unit
in the view of the lawmaker – whether legislator, practical adjudication is defeated. With this
administrator, or judge – will fulfil the underlying understanding, it is necessary to now
policies and objectives of the law of the time in the
area. Further, as society changes, the concept of turn to the application of these principles with
legal identity and the legal consequences attributed respect to Hindu idols.
to them inevitably change as well.‖51 (Emphasis
supplied) The Hindu idol and divinity

All legal units are not alike. The conferral of legal 102. At the outset, it is important to understand
personality sub-serves specific that the conferral of legal

requirements that justify its recognition. The personality on a Hindu idol is not the conferral of
conferral of juristic personality does legal personality on divinity

not automatically grant an ensemble of legal rights. itself, which in Hinduism is often understood as the
The contours of juristic ‗Supreme Being‘. The

personality i.e. the rights and liabilities that attach Supreme Being defies form and shape, yet its
upon the object conferred with presence is universal. In the law of

juristic personality, must be determined keeping in Hindu endowments and in the present proceedings,
mind the specific reasons for it has often been stated that

80
legal personality is conferred on the ‗purpose purchased the ‗Siva Natraja‘ in good faith from a
behind the idol‘. The present dealer in London who produced

judgment shall advert to the exact legal a false provenance of the Natraja for the purposes
significance of this statement. For the of the sale. The Natraja was

present, it is sufficient to note that legal personality subsequently seized by the Metropolitan Police. At
is not conferred on the trial, the Government of India

‗Supreme Being‘ itself. As observed by this Court and the state government of Tamil Nadu
in Ram Jankijee Deities v intervened, along with the Pathur

State of Bihar52: Temple and the Sivalingam as ―juristic persons‖.

The Court of Appeal engaged in
―19. God is omnipotent and omniscient and its
presence is felt not by reason of a particular form a lengthy discussion on foreign law in English
or image but by reason of a particular form or Courts. However, in evaluating the
image but by reason of the presence of the
omnipotent. It is formless, it is shapeless and it is maintainability of the claim by the Pathur temple as
for the benefit of the worshippers that there is a a legal entity, the English
manifestation in the images of the supreme being.
court made the following observations:
The supreme being has no attribute, which consists
of pure spirit and which is without a second being ―(1) Neither God nor any supernatural being can
i.e. God is the only being existing in reality, there is be a person in law. A practical illustration of the
no other being in real existence excepting Him.‖ truth of this statement is that if the endowments
(Emphasis supplied) were to vest in God as a supernatural being
litigation between different temples over their
103. In 1991, the English Court of Appeal in
respective rights would be impossible. In any event
Bumper Development
the same ―person‖ would be both plaintiff and
Corporation Ltd v Commissioner of Police of the defendant since, as Dr. Mukherjea points out, all
Metropolis53 was called to Hindus always worship the one Supreme Being.
That there is much litigation between temples in
decide the question whether a Hindu temple and a India is clear beyond a peradventure. … (4) Any
Hindu idol could sue in a court juristic person must be capable of identification.
This necessitates that ‗person‘ having a name or
52 (1999) 5 SCC 50 53 description. Since every Hindu idol is a
[1991] 1 WLR 1362 (2) manifestation of one Supreme Being, one must
look elsewhere than to the name of God for an
PART J
identification. The Pathur Temple bears the name
144 of its founder in its title; and that appears to be the
custom in Tamil Nadu. So any idol must in practice
of law. In 1976, an Indian labourer discovered a be referred to by association with the name of the
‗Siva Natraja‘ in Pathur, Tamil temple in which it is.‖
(Emphasis supplied)
Nadu which the labourer subsequently sold to a
dealer in religious artefacts. 104. Hinduism understands the Supreme Being as
existing in every aspect of
Other artefacts were subsequently found, including
a ‗Sivalingam‘, and were the universe. The Supreme Being is omnipresent.
The idea of a legal person is
reinstated in the Pathur temple. In 1982, Bumper
Development Corporation PART J

145

81
premised on the need to ‗identify the subjects‘ of has no physical presence for it is understood to be
the legal system. An omnipresent - the very ground

omnipresent being is incapable of being identified of being itself. The court does not confer legal
or delineated in any manner personality on divinity. Divinity in

meaningful to the law and no identifiable legal 54 (1969) 1 SCC 555

subject would emerge. This
PART J
understanding is reflected in the decisions of this
Court as well. In Yogendra 146

Nath Naskar v Commissioner of Income Tax, Hindu philosophy is seamless, universal and
Calcutta54, a three judge Bench infinite. Divinity pervades every

of this Court was called upon to determine whether aspect of the universe. The attributes of divinity
a Hindu idol (or ‗deity‘) falls defy description and furnish the

within the definition of an ―individual‖ under fundamental basis for not defining it with reference
Section 3 of the Income Tax Act to boundaries – physical or

1922. Justice V Ramaswami speaking for a three legal. For the reason that it is omnipresent it would
judge Bench of this Court held: be impossible to distinguish

―Sankara, the great philosopher, refers to the one where one legal entity ends and the next begins.
Reality, who, owing to the diversity of intellects The narrow confines of the law
(Matibheda) is conventionally spoken of
are ill suited to engage in such an exercise and it is
(Parikalpya) in various ways as Brahma, Visnu and
for this reason, that the law
Mahesvara. It is, however, possible that the founder
of the endowment or the worshipper may not has steered clear from adopting this approach. In
conceive of this highest spiritual plane but hold that Hinduism, physical
the idol is the very embodiment of a personal God,
but that is not a matter with which the law is manifestations of the Supreme Being exist in the
concerned. Neither God nor any supernatural being form of idols to allow
could be a person in law. But so far as the deity
stands as the representative and symbol of the worshippers to experience a shapeless being. The
particular purpose which is indicated by the donor, idol is a representation of the
it can figure as a legal person. The true legal view
Supreme Being. The idol, by possessing a physical
is that in that capacity alone the dedicated property
form is identifiable.
vests in it. There is no principle why a deity as such
a legal person should not be taxed if such a legal 105. An exploration of the method adopted for the
person is allowed in law to own property even conferral of legal personality
though in the ideal sense and to sue for the
property, to realise rent and to defend such property on Hindu idols and the reason for the conferment is
in a court of law again in the ideal sense. Our necessary. Chief Justice B K
conclusion is that the Hindu idol is a juristic entity
capable of holding property and of being taxed Mukherjea‘s, ―The Hindu Law of Religious and
through its Shebaits who are entrusted with the Charitable Trusts‖
possession and management of its property.‖
demonstrates a timeless quality and has
(Emphasis supplied)
significance in understanding the
Legal personality is not conferred on the Supreme
evolution of our law on the subject. Justice
Being. The Supreme Being
Mukherjea notes that even prior to

82
courts regulating the Hindu practice of religious cultivated by shebaits and mohunts who were
endowments, the clear public clearly not the owners. Temples were, by their
nature, malleable and apt to grow and change. The
interest in regulating properties dedicated for entity with some permanence was the idol and it is
religious purposes, resulted in the presumably for that reason that the legal concept of
the Hindu idol as a juristic entity owning land
practice being regulated by the rulers of the day.
evolved. The reason may have been purely fiscal –
He states:
these lands had to be surveyed, their ownership
―1.36 … It appears however that from very early ascertained, and then assessed for (or exempted
times religious and charitable institutions in this from) land revenue and other taxes. But the
country came under the special protection of the ownership of land almost always depended on the
ruling authority. In the celebrated Rameswar establishment of a positive act of giving – by
Pagoda case, it was pointed out by the Judicial firman, sanad or any other instrument that
Committee that the former rulers of this country unequivocally shows a dedication of the land to the
always asserted the right to visit endowments of idol.‖56 (Emphasis supplied)
this kind to prevent and redress the abuses in their
The reasons for the recognition of the idol as an
management. ―There can be little doubt‖, thus
entity in law are intrinsically tied
observed Their Lordships, ―that the
superintending authority was exercised by the older to the historical circumstances in which recognition
rulers.‖ Mr. Nelson in his Madura Manual says: took place. The setting up of
―… The Dharma Kartas held but little
communication one with another religious endowments by individuals, merchants
and rulers is an age-old practice
PART J
in India. However, the colonial administration in
147 India and English law of the time

and recognised no earthly superior except the king lacked the legal framework within which to record,
himself. Each was independent of all control and tax and ultimately adjudicate
acted altogether as he pleased. This freedom led
naturally to gross abuses and the king was 55 B.K. Mukherjea, The
compelled occasionally to interfere in the Hindu Law of Religious and Charitable Trust, 5th
management of some of the churches.‖55 Edition Eastern Law House, (1983) at page 28 56
(Emphasis supplied) Gautam Patel, Idols in Law, Vol. 45, No.50,
Economic and Political Weekly (11-17 December
106. In an article which was published in 2010 in 2010) at page 49
the Economic and Political
PART J
Weekly, Gautam Patel traces the historical
evolution of endowments. He noted 148

the reason for the conferment of personality in law upon claims with respect to Hindu religious
on idols: endowments. Disputes arose with the

―Emperors and rulers routinely donated property increase in the value of the properties dedicated.
and cash for the establishment, maintenance and The establishment of courts
upkeep of Hindu shrines. When land was made
over to a temple, it was in the form of a sanad, or across the country led to their increasingly having
grant, or firman, by edict. The Shrinathji temple at to adjudicate upon claims
Nathdwara, for instance, was said to have received
concerning endowments, idols, and debutter
a firman from the emperor Akbar. Given the
properties.
colonial obsession with orderliness and
documentation, this situation presented a problem – J.2 Idols and juristic personality
large areas of land were owned, managed and

83
107. English and Indian judges in India were called doctrine that Hindu idols possess a distinct legal
upon to determine the legal personality was adopted by

characteristics of Hindu idols and the properties English judges in India faced with the task of
associated with them. In applying Hindu law to religious

Manohar Ganesh Tambekar v Lakhmiram endowments. Property disputes arose and fuelled
Govindram57, the plaintiffs were questions about the ownership

persons interested in the religious foundation of the of the properties. Two clear interests were
temple of Dakor and the recognised as subjects of legal

defendants were recipients of the temple‘s protection. First, there existed the real possibility
offerings. The plaintiff‘s prayer was of maladministration by the

that the court appoint a receiver for the accountable shebaits (i.e. managers) where land endowed for a
disposal of the offerings particular pious purpose,

made at the temple. On the other hand, the ordinarily to the worship of an idol, was poorly
defendants submitted that the administered or even alienated.

temple offerings were their own absolute and Second, where the land was dedicated to public
secular property. A Division Bench worship, there existed the threat

of the Bombay High Court analysed the that access or other religious benefits would be
circumstances in which the case took denied to the public, in particular

place and considered the need to confer legal to the devotees. Where the original founder of the
personality on the Hindu idol. The endowment was not alive and

Court, speaking through Justice R West observed: the shebait was not the owner of the lands, how
were the courts (and through
―For a period extending over several centuries the
revenues of the temple seem to have but slightly, if them the State) to give effect to the original
at all, exceeded the outlay required to maintain its dedication? To provide courts with a
services, but recently these revenues have very
largely increased. The law which protects the conceptual framework within which they could
foundations against external violence guards it also analyse and practically adjudicate
internally against mal-administration, and
upon disputes involving competing claims over
regulates, conformable to the central principle of
endowed properties, courts
the institution, the use of its augmented funds.‖
recognised the legal personality of the Hindu idol.
57 ILR (1888) 12 Bom
It was a legal innovation
247
necessitated by historical circumstances, the gap in
PART J
the existing law and by
149
considerations of convenience. It had the added
108. The Hindu practice of dedicating properties to advantage of conferring legal
temples and idols had to be
personality on an object that within Hinduism had
adjudicated upon by courts for the first time in the long been subject to
late nineteenth century. The
personification. The exact contours of the legal
personality so conferred are of

84
relevance to the present case to which this purpose itself was elevated to the status of a legal
judgement now adverts. foundation. The foundation

PART J was a separate legal entity and came to own the

dedicated property. Hindu law
150
does not make a distinction between religious and
109. In conferring legal personality on the Hindu charitable purposes. However,
idol, courts drew inspiration
a clear parallel exists in the case of Hindu
from what they saw as factual parallels in Roman endowments. 58 B.K.
law. Justice B K Mukherjea Mukherjea, The Hindu Law of Religious and
Charitable Trust, 5th Edition, Eastern Law House
summarises the position:
(1983) at page 9
―…from the fifth century onwards – foundations
PART J
created by individuals came to be recognised as
foundations in the true legal sense, but only if they 151
took the form of Pia Causa, i.e., were devoted to
‗pious uses‘ only, in short, if they were charitable 110. In Manohar Ganesh Tambekar, the Division
institutions. Whenever a person dedicated property Bench of the Bombay High
whether by gift inter vivos or by will – in favour of
the poor or the sick, or prisoners or orphans, or Court set out the rationale for and the process by
aged people, he thereby created ipso facto a new which legal personality is
subject of legal rights – the poor house, the hospital
conferred on a Hindu idol. Justice West observes:
and so forth and the dedicated property became the
sole property of the new subject – it became the ―The Hindu law, like the Roman law and those
property of the new juristic person whom the derived from it, recognizes, not only corporate
founder had called into being. … 1…A private bodies with rights of property vested in the
person might make over property by way of legacy corporation apart from its individual members, but
or gift to a corporation already in existence and also juridical persons or subjects called
might, at the same time, prescribe the particular foundations. A Hindu, who wishes to establish a
purpose for which the property was to be religious or charitable institution, may, according
employed, e.g., feeding the poor, or giving relief to to his law, express his purpose and endow it, and
the sick or distressed. The receiving corporation the ruler will give effect to the bounty … A trust is
would be in the position of a trustee and would be not required for this purpose: the necessity of a
legally bound to spend the funds for the particular trust in such a case is indeed a peculiarity and a
purpose. The other alternative was for the donor modern peculiarity of the English law. In early
himself to create an institution or foundation. This times a gift placed, as it was expressed, ―on the
would be a new juristic person, which depended on altar of God sufficed to convey to the church the
its origin on nothing else but the will of the lands thus dedicated. … Such a practical realism is
founder, provided it was directed a charitable not confined to the sphere of law; it is made use of
purpose. The foundation would be the owner of the even by merchants in their accounts, and by
dedicated property, and the administrators would furnishing an ideal centre for an institution to
be the trustees bound to carry out the object of the which the necessary human attributes are ascribed.
foundation.‖58 (Emphasis supplied) … But if there is a juridical person, the ideal
embodiment of a pious or benevolent idea as the
centre of the foundation, this artificial subject of
In Roman law, where property was dedicated to a rights is as capable of taking offerings of cash and
particular religious or jewels as of land. Those who take physical
possession of the one as of the other kind of
charitable purpose and not to an identified donee,
property incur thereby a responsibility for its due
the religious/charitable
application to the purposes of the foundation. …
The law which protects the foundations against

85
external violence guards it also internally against against maladministration by the human agencies
mal-administration, and regulates, conformable to entrusted with the day to day
the central principle of the institution, the use of its
augmented funds. It is only as subject to this management of the idol.
control in the general interest of the community
112. Shortly after the decision in Manohar Ganesh
that the State through the law courts recognizes a
Tambekar, the Madras
merely artificial person. It guards property and
rights as devoted, and thus belonging, so to speak, High Court was called upon to decide a dispute
to a particular allowed purpose only on a condition pertaining to the appointment of
of varying the application when either the purpose
has become impracticable, useless or pernicious, or the head of a Mutt. In Vidyapurna Tirtha Swami v
the funds have augmented in an extraordinary Vidyanidhi Tirtha Swami59,
measure.‖
(Emphasis supplied) a Division Bench examined the legal character of
idols, temples and mutts in
PART J
some detail. Justice B Ayyangar went to on to
152 observe:

111. The decision in Manohar Ganesh Tambekar ―As already stated, the worshippers are
indicates that the expression beneficiaries only in a spiritual sense, and the
endowments themselves are primarily intended for
of a religious or charitable purpose and the creation spiritual purposes, through indirectly and
of an endowment to incidentally a good number of people derive
material or pecuniary benefit therefrom as office-
effectuate it was adequate. The creation of a trust,
holders, servants or objects of charity…The
as in English law was not
question has not been suggested or considered,
necessary. The creation of an endowment resulted whether the community itself for whose
in the creation of an artificial 59 ILR (1904) 27 Mad 435

legal person. The artificial or juridical person PART J

represents or embodies a pious or
153
benevolent purpose underlying its creation. Legal
spiritual benefit the institution was founded and
personality is conferred on the
endowed may not be more appropriately be
pious purpose of the individual making the regarded as a corporate body forming the juristic
endowment. Where the endowment is person in whom the properties of the institution are
vested and who act through one or more of the
made to an idol, the idol forms the material natural persons forming the corporate body, these
representation of the legal person. latter being the dharmakartas or panchayats, &c.,
charged with the execution of the trusts of the
This juridical person (i.e. the pious purpose institution and possessing strictly limited powers of
represented by the idol) can in law alienation of the endowments, as defined in the
cases cited above. Though a fluctuating and
accept offerings of movable and immovable
uncertain body of men cannot claim a profit a
property which will vest in it. The
prendre in alieeno solo, nor be the grantee of any
legal personality of the idol, and the rights of the kind of real property (see Goodman v Mayor of
idol over the property endowed Saltash, yet there is high authority for treating such
community as a corporation or juristic person in
and the offerings of devotees, are guarded by the relation to religious foundations and endowments.
law to protect the endowment … For all practical purposes however it is
immaterial whether the presiding idol or the
community of worshippers is regarded as the

86
corporation or juristic person in which the testator in that case had dedicated certain properties
properties are vested, though from a juristic point to an idol. While the
of view there may be a difference of opinion as to
which theory is more scientific. In the words of a testator died in 1890, the idol was not consecrated
recent writer on Jurisprudence (Salmond‘s until 1894. A question arose
‗Jurisprudence‘ (1902), 346) ―the choice of the
as to whether the non-existence of the idol at the
corpus into which the law shall breathe the breath
time of the testator‘s death
of a fictious personality is a matter of form rather
than of substance, of lucid and compendious invalidated the provisions of the will dedicated the
expression, rather than of legal principle,‖ …‖ property. In an erudite opinion
(Emphasis supplied)
holding that such bequests were valid, Chief Justice
The conferral of juristic personality by courts is to Lawrence Jenkins held:
overcome existing shortfalls in
―… but the testator directed all his property to be
the law and ensure societally satisfactory and placed in the hands of persons named by him and
legally sound outcomes. Justice subject to certain payments these persons were
directed to spend the surplus income which might
Ayyangar observes that a key societal interest
be left in the sheba and worship of Kali after
sought to be protected by the
establishing the image of the Kali after the name of
conferral of juristic personality on the idol was the his mother. Now this manifestly was a disposition
protection of the devotees‘ for religious purposes and such dispositions are
favoured by Hindu Law.
interests. Justice Ayyangar notes that such
protection could also be achieved by …In England it has been held that gifts ―for the
worship of God‖ or ―to be employed in the service
conferring juristic personality on the devotees as a of the Lord and Master‖ are good. Then does it
collective. However, given the invalidate the disposition that the discretion is for
the spending of the surplus income on the sheba
widespread personification of the idol, he holds and worship of Kali ―after establishing the image
that juristic personality should of the Kali after the name of my mother.‖ I think
not: the pious purpose is still the legatee, the
vest in the idol on considerations of practicality and
establishment of the image is merely the mode in
convenience.
which the pious purpose is to be effected.‖
(Emphasis supplied)

In his separate opinion, Justice Stephen noted:

PART J
―But though a dedication to a deity does not
154
constitute a gift, it has legal effect. The intention of
113. In Bhupati Nath Smrititirtha v Ram Lal the donor is that the subject-matter of the gift shall
Maitra60, a five judge Bench of be used for doing honour to the deity by worship,
and for conferring benefit on the worshippers and
the Calcutta High Court was constituted to answer the ministers of the deity who conduct it. This
the question whether bequests worship is properly and I understand necessarily
carried 60 ILR (1909-
by a testator to trustees for the establishment of an 1910) 37 Cal 128
idol of the Goddess Kali and
PART J
the worship of the idol after the testator‘s death
were invalid due to the Hindu law 155

principle which stated that gifts could only be made out by having recourse to an image or outer
to sentient beings. The physical object, but the image is nothing till

87
inspired by the deity. It is the duty of the sovereign foundation and is looked upon as the juristic being
to see that the purposes of the dedication are in which the Debutter property vests. After all,
carried out.‖ (Emphasis supplied) juristic personality is a mere creation of law and
has its
In holding that the non-existence of the idol at the
time of the testator‘s death did PART J

not matter, the opinion of Chief Justice Jenkins 156

clearly demonstrates that the
origins in a desire for doing justice by providing, as
endowed property vests in the purpose itself. As he it were, centres for jural relations. As Salmond
notes, ―the pious purpose is says: ―It may be of as many kinds as the law
considers proper,‖ and the choice of the corpus into
still the legatee.‖ It is on this purpose that juristic which the law shall breathe the breath of fictious
personality is conferred. In personality is a matter of form than of
substance.‖61 (Emphasis supplied)
recognising the pious purpose as a juristic person,
the state gives effect to, and 115. A Hindu may make an endowment for a
religious purpose. There is a
protects the endowment. The idol is the material
embodiment of the testator‘s gift. public interest in protecting the properties endowed
and ensuring that the original
As the gift is one to ensure the continued worship
of the deity, the idol is a pious purpose of the dedicator is fulfilled. The law
confers legal personality on
physical manifestation of the testator‘s pious
purpose. Where courts recognise this pious purpose. However, as Chief Justice B K
Mukherjea notes, it is the idol,
the legal personality of the idol they are in effect
recognising and protecting the as the material manifestation of the juristic person
which is ―looked upon‖ as the
testator‘s desire that the deity be worshipped.
centre in which the property vests. The idol as an
114. The understanding espoused by the decisions
embodiment of a pious or
referred to above is
benevolent purpose is recognised by the law as a
concisely summarised by Chief Justice B K
juristic entity. The state will
Mukherjea in the following terms:
therefore protect property which stands vested in
―1.48A.- Principle as to personality of
the idol even absent the
institutions.- Apart from natural persons and
corporations, which are recognised by English law, establishment of a specific or express trust. The
the position under Hindu law is that if an pious purpose, or ‗benevolent
endowments is made for a religious or charitable
institution, without the instrumentality of a trust, idea‘ is elevated to the status of a juristic person
and the object of the endowment is one which is and the idol forms the material
recognised as pious, being either religious or
charitable under the accepted notions of Hindu law, expression of the pious purpose through which
the institution will be treated as a juristic person legal relations are affected. It is
capable of holding property. … 1.48B. Idols.- The
the pious purpose at the heart of the dedication
position as to idols is of a special nature. In the
which is the basis of conferring
Hindu Debutter, it seems, the position is slightly
different, and not the whole endowment, but the legal personality on the idol and which is the
idol which as an embodiment of a pious or subject of rights and duties. The
benevolent idea, constitutes the centre of the

88
need to confer juristic personality arises out of the ―4. …It is clear that the property must have been
need for legal certainty as to made out by the Maharajah to the predecessor of
the defendant in order that the income might be
who owns the dedicated property, as well as the applied for the worship of the image [of]
need to protect the original Trilokeswar Shiva. The question arises whether this
trust came to an end when the temple was washed
intention of the dedicator and the future interests of
away and the image was broken….
the devotees. It was open for
5. …Were the contention of the respondent to
courts to even confer the personality on the
prevail the endowment would come to an end, if, as
community of devotees in certain
has happened in this case, the land upon which the
situations, but the idol is chosen as a centre for temple stood was washed away by the action of the
legal relations as the physical river. This view is not supported by any text or any
principle of the Hindu law which has been brought
manifestation of the pious purpose. to our notice.
61 B.K. Mukherjea, The Hindu Law of Religious
and Charitable Trust , 5th Edn. Eastern Law House 6. It is, on the other hand, clearly opposed to the
(1983) at page 36 principle recognized by a Full Bench of this court
in the case of Bhupati Nath Smrititirtho v. Ramlal
PART J Maitra. If then the endowment was not destroyed
when the land upon which the temple stood was
157 washed away and the image was broken, what has
happened since then to alter the position of the
116. The reason for this is outlined in the decision
parties? The defendant is in the same position as if
of the Calcutta High Court in
he held a service tenure. The land was given to him
Mohatap Bahadur v Kali Pada Chatterjee62. In the for definite purpose, namely, that he might apply
distant past, the Maharaja the income thereof for

of Burdwan dedicated certain lands for the worship 62 AIR 1914 Cal 200
of an idol (the ‗Trilokeswar
PART J
Shiva‘) and tasked the predecessor of the
158
respondent as shebaits for the
the purpose of the service of the image established
management of the worship. Subsequent to the
by the Maharaja….‖ (Emphasis supplied)
dedication, the idol was washed
The idol constitutes the embodiment or expression
away by the flooding of a river nearby. The
of the pious purpose upon
Maharaja later built a new idol in the
which legal personality is conferred. The
same village. However, the respondents refused to
destruction of the idol does not result in
perform worship at the site of
the termination of the pious purpose and
the new idol on the ground that the original idol
consequently the endowment. Even
had been washed away. The
where the idol is destroyed, or the presence of the
appellant‘s sought a direction compelling the
idol itself is intermittent or
respondents to perform necessary
entirely absent, the legal personality created by the
religious rites at the site of the freshly constructed
endowment continues to
idol. The Bench consisting of
subsist. In our country, idols are routinely
Chief Justice Jenkins and Justice Mookerjee held:
submerged in water as a matter of

89
religious practice. It cannot be said that the pious Court, held:
purpose is also extinguished
―6. …The true purpose of a gift of properties to
due to such submersion. The establishment of the the idol is not to confer any benefit on God, but to
image of the idol is the manner acquire spiritual benefit by providing opportunities
and facilities for those who desire to worship. In
in which the pious purpose is fulfilled. A conferral Bhupati Nath Smrititirtha v Ram Lal Maitra it was
of legal personality on the idol held on a consideration of these and other texts that
a gift to an idol was not to be judged by the rules
is, in effect, a recognition of the pious purpose
applicable to a transfer to a ‗sentient being‘, and
itself and not the method through
that the dedication of properties to an idol consisted
which that pious purpose is usually personified. in the abandonment of the owner of his dominion
The pious purpose may also be over them for the purpose of their being
appropriated for the purposes which he intends.
fulfilled where the presence of the idol is Thus, it was observed by Sir Lawrence Jenkins C.J
intermittent or there exists a temple at p. 138 that ―the pious purpose is still the
legatee, the establishment of the image is merely
absent an idol depending on the deed of dedication. the mode in which the pious purpose is to be
In all such cases the pious effected‖ and that ―the dedication to a deity‖ may
be ―a compendious expression of the pious
purpose on which legal personality is conferred
purpose for which the dedication is designed‖.
continues to subsist.
7. When once it is understood that the true
117. After independence, the principles applicable
beneficiaries of religious endowments are not the
to the Hindu law of
idols but the worshippers, and that the purpose of
endowments were affirmed by a four judge bench the endowment is the maintenance of that worship
of this Court in Deoki Nandan for the benefit of the worshippers, the question
whether an endowment is private or public presents
v Murlidhar63. In 1919, a Hindu testator executed no difficulty. The cardinal point to be decided is
a will bequeathing his lands to whether it was the intention of the founder that
specified individuals are to have the right of
the idol (or ‗Thakur‘) of Shri Radhakrishnaji. A worship at the shrine, or the general public or any
dispute arose between the direct specified portion thereof.‖ (Emphasis supplied)

descendant of the testator and his distant agnates on Upon making an endowment, the donor
the management of the relinquishes all claims to the endowed

Thakur. It was contended that the Thakur was property. The property now vests in the pious
being mismanaged and the public purpose at the heart of the

63 1956 SCR 756 endowment which is recognised as a legal person.

The idol forms the material
PART J
manifestation of the pious purpose and the
159
consequent centre of jural relations.
was denied worship. A declaration that the
The beneficiaries of the endowment are
Thakurdwara was a public temple was
worshippers and the proper maintenance
sought. The issue facing this Court was how to
PART J
construct the scope of the
160
dedication in the testator‘s will. Justice
Venkatarama Ayyar, speaking for this of worship to the idol is to enable the worshippers
to achieve the spiritual benefit

90
of being in communion with the divine. seen as an embodiment of the purpose behind the
dedication, was chosen as the
118. In Yogendra Nath Naskar v Commissioner of
Income Tax, Calcutta64, site of legal relations. The creation by judicial
interpretation of an entity in law
in deciding that a Hindu idol (or ‗deity‘) fell within
the definition of ―individual‖ sub-served an important function. For it obviated a
situation that would arise if,
under Section 3 of the Income Tax Act 1922,
Justice Ramaswami speaking for a despite a dedication by a Hindu for a pious
purpose, there existed no legally
three-judge Bench of this Court held:
recognised entity which could receive the
―6. …It should however be remembered that the dedication. Such a situation was
juristic person in the idol is not the material image,
and it is an exploded theory that the image itself obviated by the judicially recognised principle that
develops into a legal person as soon as it is where an endowment is made
consecrated and vivified by the Pran Pratishta
ceremony. It is not also correct that the Supreme for a religious or charitable institution and the
Being of which the idol is a symbol or image is the object is pious, the institution will be
recipient and owner of the dedicated property. …
treated as a juristic person even in the absence of a
The correct legal position is that the idol as
trust. Similarly, where the
representing and embodying the spiritual purpose
of the donor is the juristic person recognised by law dedication is for an idol to be worshipped, the
and in this juristic person the dedicated property interests of present and future
vests. As observed by Mr. [J]ustice B.K.
Mukherjea: ―With regard to the debutter… It is devotees would be at risk in the absence of a legal
not only a compendious expression but a material framework which ensured the
embodiment of the pious purpose and though there
is difficulty in holding that property can reside in regulation of the dedication made. The conferment
the aim or purpose itself, it would be quite of legal personality on the
consistent with sound principles of Jurisprudence
pious purpose ensured that there existed an entity
to say that a material object which represents or
in which the property would
symbolises a particular purpose can be given the
status of a legal person, and regarded as owner of vest in an ideal sense, to receive the dedication and
the property which is dedicated to it.‖ … The legal through whom the interests
position is comparable in many respects to the
development in Roman Law.‖ (Emphasis of the devotees could be protected. This was for the
supplied) purpose of fulfilling the

64 (1969) 1 SCC 555 object of the dedication and through the

performance of worship in accordance
PART J
with religious texts, ensuring that the devotees
161 realised peace through prayer.
The purpose behind the dedication 120. The recognition of juristic personality was
hence devised by the courts to
119. Similar to the conceptual grounding of juristic
personality in the case of a give legal effect to the Hindu practice of dedicating
property for a religious or
ship in admiralty law to personify actions in rem,
the material object (i.e. idol), ‗pious‘ purposes. The founder or testator may
choose to dedicate property for the

91
use of a pious purpose. In many of the above cases, purpose. The idol, as a representation or a
this pious purpose took the ―compendious expression‖ of the

PART J pious purpose (now the artificial legal person) is a

site of legal relations. This is
162
also in consonance with the understanding that
form of continued maintenance and worship of an even where an idol is destroyed,
idol. There was a clear state
the endowment does not come to an end. Being the
interest in giving effect to the will of the founder or physical manifestation of the
testator who has so dedicated
pious purpose, even where the idol is submerged,
property, as well as for ensuring that the property is not in existence temporarily, or
at all times used for the
destroyed by forces of nature, the pious purpose
purpose of the dedication. A legal fiction was recognised to be a legal person
created by which legal personality
continues to exist.
was conferred on the religious or charitable
purpose for which the endowment PART J

was made. In the case of a dedication for an idol, 163

the juristic personality finds
122. The extent to which the doctrine arose out of
‗compendious expression‘ in the idol itself. By legal necessity and
conferring legal personality, the
convenience is exemplified by Justice Ayyangar in
court gave legal effect to the dedication by creating Vidyapurna Tirtha Swami v
an entity to receive the
Vidyanidhi Tirtha Swami65 when the learned
properties so dedicated. By stating that the artificial judge noted that it was even
person created is in fact the
possible, by legal fiction, to recognise the
owner of the dedicated properties, the court community or collective of devotees as
guarded against maladministration
a single legal person. As he noted, this would have
by the shebait. Even though the artificial legal equally served the court‘s
person cannot sue without the
goals of creating an adequate legal framework for
assistance of a natural person, a legal framework protecting the dedicated
was brought into existence by
properties and the interests of the devotees.
which claims for and against the dedicated property However, the court notes that, as
could be pursued.
there was no ―practical‖ difference, the legal
121. Though conceptually courts attributed legal fiction was applied to the idol and not
personality to the intention of
to the devotees for the sake of simplicity. This
the founder, a convenient physical site of legal course of precedent denotes how
relations was found in the physical
the continued personification of the idol in
idol. This understanding is reiterated by this religious practice laid the foundations
Court‘s observations in Deoki
for the court to choose the idol as the site of legal
Nandan that the idol is a ―compendious relations.
expression‖ of the testator‘s pious

92
123. The recognition of the Hindu idol as a legal or plaintiffs in Suit 5 that the first and second
―juristic‖ person is therefore plaintiffs - Bhagwan Sri Ram Virajman

based on two premises employed by courts. The and Asthan Shri Ram Janam Bhumi are juristic
first is to recognise the pious persons. If this contention is

purpose of the testator as a legal entity capable of accepted, this Court will then be required to
holding property in an ideal adjudicate upon the legal

sense absent the creation of a trust. The second is consequences of the second plaintiff being declared
the merging of the pious a juristic person.

purpose itself and the idol which embodies the J.3 Juristic personality of the first plaintiff
pious purpose to ensure the
125. For the devotees of Lord Ram, the first
fulfilment of the pious purpose. So conceived, the plaintiff in Suit 5, ―Bhagwan Sri
Hindu idol is a legal person.
Ram Virajman‖ is the embodiment of Lord Ram
The property endowed to the pious purpose is and constitutes the resident deity
owned by the idol as a legal
of Ram Janmabhumi. The faith and belief of the
person in an ideal sense. The reason why the court Hindu devotees is a matter
created such legal fictions
personal to their conscience and it is not for this
was to provide a comprehensible legal framework Court to scrutinise the strength
to protect the properties
of their convictions or the rationality of their
dedicated to the pious purpose from external threats beliefs beyond a prima facie
as well as internal
examination to ascertain whether such beliefs are
maladministration. Where the pious purpose held in good faith.
necessitated a public trust for the
126. The oral and documentary evidence shows
benefit of all devotees, conferring legal personality that the Hindu devotees of
allowed courts to protect the
Lord Ram hold a genuine, long standing and
65 ILR (1904) 27 Mad profound belief in the religious merit
435
attained by offering prayer to Lord Ram at the site
PART J they believe to be his birth

164 place. Evidence has been led by the plaintiffs in

Suit 5 to show a long practice of
pious purpose for the benefit of the devotees.
Hindu worship to Lord Ram at the disputed site.
124. Having set out the history and the underlying The travel logs of Joseph
basis of the legal innovation
Tieffenthaler in the eighteenth century and Robert
surrounding the conferral of juristic personality on Montgomery Martin in the
Hindu idols, it becomes
PART J
necessary to advert to the principle question before
us. The present case turns, 165

in a significant measure, on the answer to the early nineteenth century record the prevalence of
contention urged on behalf of the Hindu worship at the disputed

93
site. They also reference special occasions such as purpose sought to be achieved, legal personality
Ram Navmi during which may even be conferred on an

Hindu devotees converged upon the Janmasthan abstract idea. In the case of Hindu idols, legal
from distant areas motivated by personality is not conferred on the

the desire to offer prayer to Lord Ram. The idol simpliciter but on the underlying pious purpose
continued faith and belief of the Hindu of the continued worship of

devotees in the existence of the Janmasthan below the deity as incarnated in the idol. Where the legal
the three domed structure is personality is conferred on the

evidenced by the activities of the Nirmohis, PART J

individual devotees such as Nihang
166
Singh and the endless stream of Hindu devotees
over the years who visited the purpose of a deity‘s continued worship, moving or
destroying the idol does not
disputed site. This is testament to the long-held
belief in the sanctity of the affect its legal personality. The legal personality
vests in the purpose of continued
disputed site as a place of worship for the Hindu
religion. It is not necessary to worship of the idol as recognised by the court. It is
for the protection of the
the determination of the legal personality of the
first plaintiff in Suit 5 to establish continued worship that the law recognises this
purpose and seeks to protect it by
whether the devotees believed that the exact spot
under the central dome was the conferral of juristic personality.

the birth-place of Lord Ram or whether the faith 128. In addition to the continued worship of the
and belief of the devotees itself deity, legal personality is

can confer title. These questions are addressed at a conferred on Hindu idols to provide courts with a
later part of this judgement. conceptual framework within

For the present purposes, it is sufficient to note that which to practically adjudicate disputes involving
the factum of Hindu belief in competing claims over disputed

the sanctity of the disputed site is established by property endowed to or appurtenant to Hindu idols.
evidence. In order to adjudicate

127. For the purposes of recognising a legal person, disputes, the court locates a site of jural relations to
the relevant inquiry is the determine proprietary claims,

purpose to be achieved by such recognition. To the maladministration by shebaits and protect the
extent such purpose is interests of devotees. The law thus

achieved, the form or corpus of the object upon protects the properties of the idol even absent the
which legal personality is establishment of a specific or

conferred is not a matter of substance but merely a express trust. In the proceedings before us, the
question of form. As legal rights and properties of the

observed by Salmond, so long as the conferral of first plaintiff in Suit 5 were in dispute. However, no
legal personality serves the submissions were made

94
challenging the legal personality of the first plaintiffs in Suit 5 urged that the second plaintiff is
plaintiff. Significantly, Dr Rajeev a juristic person. He submitted

Dhavan, learned Senior Counsel appearing for the that in Hindu Law the concept of a juridical person
plaintiffs in Suit 4 admitted the is not limited to idols.

juristic personality of the first plaintiff. The According to Mr Parasaran, the relevant question is
question of the legal personality of the whether prayer is offered to

first plaintiff is distinct from the properties that the deity and not the form in which the deity
appertain to the first plaintiff. The appears. It was contended that

determination of the properties that vest in the deity ―Asthan Sri Ram Janam Bhoomi‖ is an object of
is discussed in light of the worship and personifies the spirit

competing claims to the property later in this of the divine. The faith of the devotees regards the
judgement. land as a deity and prayer is

129. In the present case, the first plaintiff has been offered to it. Hence, it was on this basis that the
the object of worship for plaintiffs in Suit 5 submit that this

several hundred years and the underlying purpose court must confer juristic personality on the land
of continued worship is represented as Ram

apparent even absent any express dedication or Janmasthan. To support this contention, it was
trust. The existence of the idol is urged that God is shapeless and

PART J formless and there is no requirement that the object

of worship be an idol. It was
167
urged that the performance of the parikrama
merely a question of form, or corpus, and the legal (circumambulation) around the
personality of the first plaintiff
disputed spot with the faith and belief that it is the
is not dependent on the continued existence of the birth-place of Lord Ram
idol. At the heart of the
delineates the boundaries of the property on which
present dispute are questions pertaining to the the status of a juristic entity
rightful manager of the deity and
must be conferred. To support this contention, Mr
the access of the devotees of Lord Ram to the idols. Parasaran relied on the
To ensure the legal
PART J
protection of the underlying purpose and
practically adjudicate upon the dispute, 168

the legal personality of the first plaintiff is following decisions, which shall be adverted to in
recognised. the course of the judgment:

J.4 Juristic personality of the second plaintiff Manohar Ganesh Tambekar v Lakhmiram
Govindram66, Bhupati Nath
Submissions
Smrititirtha v Ram Lal Maitra67, Rampat v Durga
130. Mr K Parasaran, learned Senior Counsel Bharthi68, Ram Brahma v
appearing on behalf of the
Kedar Nath69 , Madura, Tirupparankundram v
Alikhan Sahib70, The Board of

95
Commissioners for Hindu Religious Endowments, Vaidyanathan urged that the determination of the
Madras v Pidugu second plaintiff as a juristic

Narasimhan71, TRK Ramaswami Servai v The person renders infructuous questions of possession,
Board of Commissioners for joint-possession or adverse

the Hindu Religious Endowments, Madras72, The possession as the land itself is a legal person and no
Poohari Fakhir Sadavarthy other person can possess a

of Bondipiputram v The Commissioner, Hindu legal personality. It was urged that the mere fact
Religious and Charitable that a mosque existed at the

Endowments,73 Venkataramana Murthi v Sri disputed site cannot evidence a claim of either title
Rama Mandhiram74, Sastri or joint possession on behalf

Yagnapurushad Ji v Muldas Bhudardas Vaishya75, of the Sunni Waqf Board. By an extension of the
Yogendra Nath Naskar v same argument, once it is held

CIT, Calcutta76, Kamaraju Venkata Krishna Rao v that the disputed site is a juristic person, no
Sub Collector, Ongole77, partition of the land can be affected

Shiromani Gurdwara Prabandhak Committee, as a deity, recognised as a legal person is

Amritsar v Som Nath Dass78; impartible and cannot be divided. Any

and Thayarammal v Kanakammal79. division of the property will amount to a

destruction of the deity. It is on this basis
131. Mr C S Vaidyanathan, learned Senior Counsel
appearing on behalf of the that the impugned judgment of the High Court
directing a three-way division of
plaintiffs in Suit 5 adopted the submissions of Mr
Parasaran that the second the property was challenged. Reliance was placed
in this regard on the decisions
plaintiff in Suit 5 is a juristic person. He urged that
there is a distinction between: in Pramatha Nath Mullick v Pradyumna Kumar
Mullick80, Idol of Thakurji Shri
(i) the land being a deity; (ii) the land being the
abode of a deity; and (iii) the land Govind Deoji Maharaj, Jaipur v Board of Revenue,
Rajasthan81, and Profulla
being the property of a deity. It was urged that in
the present case, the land Chorone Requitte v Satya Chorone Requitte82.

66 ILR 1888 12 Bom 132. Mr Vaidyanathan submitted that the disputed

247 67 ILR 1909 37 Cal 128 68 AIR 1920 Oudh property, being a legal
258 69 (1922) 36 CLJ 478 70 (1931) 61 Mad. LJ
285 71 1939 1 MLJ 134 72 ILR 1950 Mad 799 73 person, is res nullius. Since the disputed property is
1962 Supp 2 SCR 276 74 (1964) 2 ANWR 457 75 a juristic person, it is not
(1966) 3 SCR 242 76 (1969) 1 SCC 555 77 (1969)
alienable. It was contended that land which is res
1 SCR 624 78 (2000) 4 SCC 146 79 (2005) 1 SCC
nullius or res extra
457
commercium cannot be acquired by adverse
PART J
possession. It was urged that even
169
if the image of the idol is broken, a deity is
constituting the disputed site, is an object of immortal and thus, the construction of
worship and is itself the deity. Mr

96
the mosque on the land did not take away from its the place of birth is in dispute. Moreover, the
character as a deity. Reliance property cannot be elevated to the

was placed on the decisions in Mahant Ram Saroop status of a juristic person only on the basis of faith
Dasji v SP Sahi, Special and belief that it is the birth

80 (1924-25) 52 IA 245 place of Lord Ram. To this end, it was submitted

81 (1965) 1 SCR 96 82 (1979) 3 SCC 409 that the subjective belief of a

PART J certain section of devotees cannot lead to the

objective consequence of a
170
proprietary claim in law. It was urged that in the
Officer-in-Charge of the Hindu Religious Trusts83, Vedic period, the worship of
Ram Jankijee Deities v
physical objects of nature was practiced in ancient
State of Bihar84, Amrendra Pratap Singh v Tej India. Underlying the worship
Bahadur Prajapati85,
83 1959 Supp (2) SCR
Thayarammal v Kanakammal86 and Rajasthan 583 84 (1999) 5 SCC 50 85 (2004) 10 SCC 65 86
Housing Board v New Pink (2005) 1 SCC 457 87 (2015) 7 SCC 601

City Nirman Sahkari Samiti Limited87. PART J

133. On the other hand, Dr Rajeev Dhavan, learned 171

Senior Counsel appearing
of the object was the purpose it served. Dr Dhavan
for the Sunni Central Waqf Board, the plaintiffs in contended that the status of
Suit 4, urged that the ‗Asthan
juristic personality does not attach to every object
Ram Janma Bhumi‘ (the second plaintiff in Suit 5) of religious significance, and
is not a juristic person. He
that a positive act of sanctification or recognition is
submitted that the contention that the disputed land required.
is a juristic person was raised
134. Dr Dhavan further submitted that the
for the first time only in 1989. Dr Dhavan urged conferment of legal personality on
that there are two separate and
immoveable property is not supported by the
distinct issues that have arisen before this Court. existing law on the legal personality
One concerns the faith and
of Hindu idols and that conferring legal personality
belief that Lord Ram was born in Ayodhya and the on land would be an
evidence adduced to this
innovation leading to the insulation of land from
effect. The other is the set of legal consequences any form of adjudication. Legal
that flow from the disputed
impregnability would be conferred merely on the
property being elevated to the status of a juristic basis of the faith and belief of
person. Dr Dhavan submitted
devotees. It was urged that the conferral of juristic
that while the faith and belief of a sect that personality on the second
religious significance attaches to the
plaintiff would create two legal regimes – one
birth-place of Lord Ram cannot be questioned, the applicable to idols and the other to
precise site which constitutes

97
land – both with distinct rights, power, duties and impregnability. He submitted that while
interests. Dr Dhavan drew a recognising the idol as a legal person is

distinction between the applicable regime legally defensible and consistent with the
governing the idol and the regime jurisprudence of this Court, conferring

governing land (as emerging from the submissions legal personality on land itself is a legal innovation
of the plaintiffs in Suit 5) in the conferring rights that are not

following terms: available to the first plaintiff. It was finally urged

that no distinction must be drawn
(i) The legal regime applicable to the first plaintiff
as a recognised Hindu between Indic religions and other religions and no
plea for constitutional
idol – properties of the idol vest in it in an ideal
sense; any claim to title is protection could be taken by the plaintiffs in Suit 5
in what is essentially a civil
actionable only at the behest of the shebait (unless
the shebait has acted matter. This would result in the faith and belief of
one religion influencing the
contrary to the interests of the idol); and the law of
adverse possession outcome of a civil adjudication on private rights
between two religious
and limitation would apply to claims involving
property owned by the idol; communities.

and These rival submissions will now be analysed.

(ii) The legal regime applicable to the second Distinguishing religious significance and juristic
plaintiff – juristic recognition personality

would be premised on the subjective belief of the 136. Recognition of the religious significance of a
devotees that the area is place as a place of public

a deity; the conferral of juristic personality renders worship is conceptually distinct from recognising
infructuous any the place as a juristic person.

PART J Ram Janmabhumi is undoubtedly of religious

significance to the Hindus based on
172
the faith and belief that it is the birth-place of Lord
competing proprietary claims; and the law of Ram. A determination by this
limitation and adverse
Court of whether or not the disputed site is a
possession are inapplicable to the property in juridical person will not in any
question.
manner detract from the significance of the faith
135. Dr Dhavan argues against accepting any and belief of the Hindu
consequence as it emerges
PART J
based on the above distinction. Dr Dhavan
contended that the conferral of 173

juridical personality on the second plaintiff would community.

carve out a sphere of legal
137. To support their contention that the second
plaintiff is a juristic person,

98
learned Senior Counsel appearing for the plaintiffs ―9. The evidence recorded in the case, including
in Suit 5 relied on a wealth of that of many donors to the idol Shri Ranchhod
Raiji, shows that having discharged a religious duty
precedent. A close reading of those decisions or gained religious merit by a
indicates that the counsel have 88 ILR 1888 12 Bom 247

selectively relied on extracts to support the PART J

contention that the disputed site is a
174
juridical person. To determine the extent to which
they support the contentions gift to the deity, the votary is but little interested in
what afterwards becomes of the offering …. Still
urged by the plaintiffs in Suit 5, it would be he must needs be and is concerned in the
necessary now to analyse the cases maintenance of a decent and orderly worship. …He
desires a regular and continuous or at least a
relied upon and examine the context in which they
periodical round of sacred ceremonies, which
were adjudicated.
might fail if the offerings of past years were all
138. In Manohar Ganesh Tambekar v Lakhmiram squandered, while those of any given year fell
Govindram88, the plaintiff short. The sevaks seem to have received the
offerings, both of immovables and of moveables,
instituted a suit as a party interested in the with a consciousness, though but a hazy
maintenance of the religious consciousness, that they were bound, out of the
funds thus coming to them, to provide for the
foundation of the temple dedicated to a deity. The worship of the idol and the convenience of the
plaintiff sought to make the pilgrims who resort to the temple.‖
(Emphasis supplied)
defendants, who were the recipients of the
offerings at the temple, accountable The sevaks (defendants) admitted to their
responsibility to take care of the
as trustees proper. The defendants claimed that
they were the absolute owners temple. Articles of value were to be consigned to
the bhandari. It is in this context
and held all offerings as private property. A
Division Bench of the Bombay High that the Court held:

Court held that while private guilds may exist, ―11. … Mr. Macpherson admitted for the
under English law an association defendants in this case that they could not sell the
lands bestowed on the idol Shri Ranchhod Raiji.
consisting of a fluctuating or undefined class of
This restriction is like the one by which the
individuals, whether or not it
Emperor forbade the alienation of dedicated lands
exists for charitable purposes, cannot be vested under any circumstances Vyav. May., Chap. IV, S.
with property without VII, p. 23; Nov. 120, cap., 10. It is consistent with
the grants having been made to the juridical person
incorporation. The defendants however put symbolized or personified in the idol at Dakor. It is
themselves forward as a body of not consistent with this juridical person's being
conceived as a mere slave or property of the sevaks
proprietors with revenue arising from the whose very title implies not ownership, but service
accumulated offerings of articles of of the god. It is indeed a strange, if not wilful,
confusion of thought by which the defendants set
value laid at the feet of the idol. The Court,
up the Shri Ranchhod Raiji as a deity for the
speaking through Justice R West
purpose of inviting gifts and vouchsafing blessings,
observed: but, as a mere block of stone, their property for the
purpose of their appropriating every gift laid at its
feet.. But if there is a juridical person, the ideal

99
embodiment of a pious or benevolent idea as the ―In my opinion, the Asthan at Parela, as founded,
centre of the foundation, this artificial subject of was completely in accordance with the type of
rights is as capable of taking offerings of cash and monasteries of the old days. The several legal
jewels as of land.‖ concepts which emerge out of the foregoing
(Emphasis supplied) narrative may be stated to be as follows: (1) It is a
congregation of Sannyasis, celibates and ascetics,
The decision clarifies that an idol as a juridical who has entirely cut themselves off from worldly
person is the ―ideal embodiment‖ ties. (2) The properties appertaining to the Asthan
are held in trust for the purposes of the Asthan. (3)
of a pious or benevolent idea. The status of a
The purposes of the Asthan are maintenance of the
juristic person was conferred on the
devotees and propagation of charities. (4) The head
idol as an entity which encompasses the purpose of the Asthan is the trustee of the institution and of
itself in which capacity the the properties attached to it….An Asthan therefore
is essentially an institution of Sannyasis, celibates
PART J and ascetics – having no wordly connection either
of wealth or of family.‖ (Emphasis supplied)
175
89 AIR 1920 Oudh 258
properties and offerings vest. The observations in
this case affirm the position PART J

that juridical personality was conferred on the 176

pious purpose and the property
In this view, the ‗Asthan‘ was not a building but a
endowed or accumulated did not itself become a seat of religious learning. The
juristic entity. It is not the
nature of the ‗Asthan‘ abundantly clarifies that is
property endowed which is a juridical person – it is was not treated as corporeal
the idol which as an
property, but a charitable institution of learning
embodiment of a pious purpose which is which was considered to be the
recognised as a juristic person, in whom
juridical person. The physical property that was the
the property stands vested. monastery was not treated as

139. In Rampat v Durga Bharthi89, the respondent a juristic person. The court concluded that it was
claimed, as Mahant of the the charitable institution as a

‗Asthan‘ as well as under the deed of settlement, juristic person in which the suit villages vested.
that he was entitled to recover
140. In Rambrahma Chatterjee v Kedar Nath
properties which appertain to the ‗Asthan‘ of Banerjee90, the respondents
Parela. One Mr Ghattari constructed
instituted a suit for a declaration that they were
a monastery (‗Asthan‘) at Parela and consecrated entitled to participate in the bhog
its building towards the service
offered to three idols which were consecrated by
of his ascetic brotherhood and purchased the suit the common ancestors of the
villages for the maintenance of
respondents and the appellant. A temple was
the institution. Justice Nazir Hasan speaking for the constructed, and properties were
Oudh Judicial
dedicated to the idols. The respondents, as
Commissioner‘s Court on the nature of the descendants of the founders through
‗Asthan‘ held:

100
their daughters claimed a practice of participating that a deity is conceived as a real living being. In
in the bhog and the courts this regard, the court noted:

below found that the descendants in the male line ―…There is a fundamental distinction between a
had consistently been gift to a sentient being and an offering or
dedication to a deity. Subject to special usages to
shebaits. The question which arose for the contrary, the offerings do not become the
determination was whether it was property of the officiating priest, but contribute to
the maintenance of the shrine with all its rights,
competent for the founder to direct that the
ceremonies and charities… It is sufficient to state
shebaitship should be vested in the
that the deity is, in short, conceived as a living
descendants through the son and that the being and is treated in the same way as the master
descendants through the daughters of the house would be treated by his humble
servant. The daily routine of life is gone through
have a right to participate in the bhog offering. The with minute accuracy; the vivified image is regaled
High Court of Calcutta, held with the necessaries and luxuries of life in due
succession, even to the changing of clothes, the
as follows: offering of cooked and uncooked food, and the
retirement to rest. The dedicated food, known as
―…a charitable corporation, in so far as it is
bhog, is, after completion of the worship,
charitable, is the creature of the founder…There is
distributed in charity amongst members of the
no reason why the founder, who is competent to
family as also among guests invited and uninvited;
provide for the government and administration of
for in the oldest Brahminical writings hospitality is
the trust, should not be able to give a direction for
regarded as the discharge of a common debt to
its management, which is not inconsistent with its
humanity and the guest is honoured as a divinity. In
character as a religious and charitable trust…The
our opinion, a direction that the descendants of the
test in each case is, whether the direction given by
daughters of the founder should participate in such
the founder is inconsistent with the nature of the
a distribution of consecrated food, is in no way
endowment as a religious and charitable trust and is
inconsistent with the purpose of the endowment.‖
a colourable device for the evasion of the law of
(Emphasis supplied)
perpetuities.‖ 90 (1922)
36 CLJ 478 The method of worshipping an established deity as
a real person is separate and
PART J
distinct from the conferral of juristic personality in
177
law. Human personality is
The court noted that for over two centuries,
distinct from legal personality. The court made a
shebaitship rights had vested in the
reference to the methods of
descendants through the sons and that the
worship performed for an established deity, which
descendants through the daughters
is in accordance with the faith
exercised a right to participate in the bhog offering.
and belief of the worshippers. No question of a
In this context, the court held
juristic person arose in this case.
that it would be slow to interfere with the exercise
PART J
of these rights over a long
178
duration of time without question and a reasonable
presumption will be drawn in Madhura Tirupparankundram

favour of such a right. The plaintiffs in Suit 5 relied 141. The plaintiffs in Suit 5 have then placed
on the observation in this case reliance on the decision of the

101
Privy Council in Madura, Tirupparankundram v Government was the owner of the hill. Around the
Alikhan Sahib91. It was urged base of the hill, worshippers

that in this case an entire hill, as a place of public 91 (1931) 61 Mad LJ

worship, was recognised as a 285

juristic person on the basis of the circumambulation PART J

performed around it.
179
Consequently, in the present case, the performance
of the parikrama around the performed the Pradakshinan by a circumambulation
of the hill. This path was also
disputed site should (it has been urged) have the
effect of the land being elevated used for processions with the temple car and was
known as Ghiri Veedhi. While
to the status of a juristic person.
the judgment of the High Court noted evidence on
142. The Privy Council in Madura record that the hill as a whole
Tirupparankundram was concerned with the
was worshipped by the Hindu community as a
ownership of a barren hill in the Madura District of Linga, the question at the heart of
Madras. There was a mosque
the dispute concerned the question of ownership
at the highest point of the hill. The over the unoccupied portions of
Tirupparankundram Temple, represented by
the hill within the Ghiri Veedhi. Under Lord
its manager, instituted a suit claiming the whole hill Clive‘s treaty with Azim-ul-Dowlah in
as temple property (with the
1801, Madura came under the control of the East
exception of certain cultivated and assessed lands India Company. The High Court
and the site of the mosque).
took the view that, post 1801 the entire hill, being
The Mohammedan defendants asserted ownership part of the village, became
over the mosque and a
Government property.
portion of the hill known as Nellitope. The
Secretary of State claimed to be the 143. The Privy Council held that acts of ownership
had been exercised
owner of all unoccupied portions of the hill. The
Subordinate judge of Madura consistently by the temple for the greater part of a
century over all unoccupied
decreed in favour of the Plaintiffs (with the
exception of the Nellitope, the mosque portions of the land. Expenses were also incurred
for the upkeep of smaller
itself and the flights of stairs leading to it). The
Mohammedan defendants filed an shrines situated within the Ghiri Veedhi. The
temple was held to have been in
appeal and the Secretary of State was directed to be
a party to the appeal. possession of the unoccupied portion of the hill
from time immemorial which had
Despite a finding that the Hindus and
Mohammedans had rights over the hill, and been treated by the temple as temple property. The
Privy Council held that, save
without specifying what these rights were, the High
Court held that the and except the mosque, there was ―no evidence of
expropriation from the

102
remainder‖ of the hill. Sir George Lowndes held: 144. In The Board of Commissioners for Hindu
Religious Endowments,
―The only rights which the temple can assert
against the respondent are rights which the East Madras v Pidugu Narasimhan92, the Board framed
India Company granted to them or allowed them to a scheme on the ground that
retain…and their Lordships think the evidence
shows that the temple was left after 1801 in the institution in question was a temple within the
undisturbed possession of all that it now claims… meaning of the Madras Hindu
Their Lordships do not doubt that there is a general
Religious Endowments Act 1863. The respondent
presumption that waste lands are the property of
instituted a suit challenging the
the Crown, but they think that it is not applicable to
the facts of the present case where the alleged declaration of the institution as a temple under the
waste is, at all events physically, within a temple Act. A Division Bench of the
enclosure…On the whole their Lordships are of
opinion that the appellant has shown that the Madras High Court observed that the institution
unoccupied portion of the hill has been in the had been in existence for several
possession of the temple
centuries and had over time become a place of
PART J worship. The court observed that

180 the worship must be of sufficient significance to

attract public endowments. On an
from time immemorial and has been treated by the
temple authorities as their property.‖ (Emphasis assessment of the events carried on within the
supplied) institution, the court concluded

A close reading of the judgment makes it evident 92 1939 1 MLJ 134

that the Privy Council was only
PART J
concerned with (i) the unoccupied portions of the
land and the protection of other 181

proprietary rights in the hill; and (ii) the ownership that there was, within the institution, public
of the property by the temple. religious worship. The High Court held

The Privy Council was not concerned with the that the Board was thus authorized to frame a
elevation of the hill itself to the scheme under the Act. Justice

status of a juristic person. There is a distinction Varadachariar observed:

between the ownership of the
―The test is not whether it conforms to any
property by the temple, and the conferral of legal particular school of Agama Sastra; we think that
personality on land. Where land the question must be decided with reference to the
view of the class of people who take part in the
is owned by a person, it cannot be a juristic person, worship. If they believe in its religious efficacy, in
for no person can own a the sense that by such worship, they are making
themselves the object of the bounty of some
deity as a juristic person. This case does not further superhuman power, it must be regarded as
the argument advanced by ―religious worship.‖
the plaintiffs in Suit 5 that the disputed property is 145. Mr Parasaran, appearing on behalf of the
itself a juristic person. plaintiffs in Suit 5 argued, on the
Temples governed by statutes basis of this extract, that by performing the
parikrama around the disputed site

103
with the faith and belief that the disputed site is the that certain land had been endowed to a temple
birth-place of Lord Ram, the Devasthanam and that a temple

devotees believe that the receive the spiritual was under construction. Besides the donor, two
benefits of religious worship. This, trustees were appointed. In

it was urged, is adequate for this Court to hold that 1937, the Hindu Religious Endowments Board
the land constituting the demanded a contribution from the

second plaintiff is a juristic person. The trustees on the assumption that the construction of
observations of the Madras High Court in the temple was complete.

Pidugu Narasimhan were in the context of This was resisted by the appellants on the ground
assessing whether the performance that the temple was not

of the ceremonies amounted to ―public religious constructed and that no idol had been installed. The
worship‖ in order to determine temple was nonetheless

whether the institution in question was a temple declared a temple within the ambit of the Madras
under the Act. No question arose Hindu Religious Endowments

of the temple being a juristic person. At best, this Act, 1926. Subsequently, a scheme of management
case supports the proposition was sought to be framed for

put forth by the plaintiffs in Suit 5 that the nature of the temple.
worship performed at the
147. Among the various issues addressed by the
disputed site is of a religious nature. court, one concerned the

146. Mr Parasaran placed reliance on a decision of existence of a valid temple for the purposes of the
the Madras High Court in Act. The two judges on the

TRK Ramaswami Servai v The Board of Division Bench differed and the case was then
Commissioners for the Hindu referred to a third Judge. Agreeing

Religious Endowments, Madras93 to contend that that there existed a temple for the purposes of the
the presence of an idol is a Act, Justice Viswanatha Sastri

93 ILR 1950 Mad 799 held:

PART J ―…The Hindu law recognizes the validity of

dedications for the establishment of a deity and the
182 maintenance of its worship. It is immaterial that the
image of the deity has not been established before a
dispensable requirement with respect to religious
gift or bequest is made for it…The test is not
worship and that the faith and
whether the installation of an idol and the mode of
belief of the worshippers along with the its worship conform to any particular school of
performance of the parikrama around the Agama Sastras. If the public or that section of the
public who go for worship consider that there is a
disputed land is sufficient for a court to confer on Divine presence in a particular place and by
the disputed site legal offering worship at that place, they are likely to be
the recipients of the county or blessings of God
personality. In TRK Ramaswami Servai, a deed of then, you have got the essential features of a temple
gift was executed declaring as defined in

PART J

104
183 the Hindu Religious and Charitable Endowments
Act 1951. The court affirmed
section 9, clause 12, of the Act. The presence of an
idol, though an invariable feature of Hindu temples, that the existence of public religious worship and a
is not a legal requisite under the definition of a dedication is adequate for the
temple in section 9, clause 12, of the Act.‖
(Emphasis supplied) institution to be declared as a temple under the Act,
even absent an idol. This
The observations of the court were made in the
context of assessing whether the 94 (1964) 2 ANWR 457

presence of an idol was required for the institution PART J

to be defined as a temple
184
under Section 9 of the Madras Hindu Religious
case does not support the case of the plaintiffs in
Endowments Act, 1926. It was in
Suit 5.
this context that the court held that the belief of the
149. In the decision of this Court in Kamaraju
devotees that they will be the
Venkata Krishna Rao v Sub
recipients of God‘s blessings was sufficient for the
Collector, Ongole95, upon which significant
institution to be held a temple
reliance has been placed, the
under the Act. At best, these observations of the
question before a three judge Bench was whether a
court establish that the belief of
tank can be considered a
devotees that there is a divine presence is
charitable institution within the meaning of the
constitutive of a place of public
Andhra Inams (Abolition and
worship. This however, is distinct from the
Conversion into Ryotwari Act) 1956. Who granted
conferral of juristic personality. An
the Inam in question was not
adjudication that an institution is a temple for the
known. The appellant sought a declaration that the
purposes of a statutory
property comprised in the
enactment is distinct from the issue as to whether
Inam be registered in his name. This contention
the institution possesses
was rejected by the authorities
juristic personality. The observations in this case
under the Act on the ground that under the records,
were made in the specific
the Inam was granted to the
context of a statutory definition and cannot be
tank itself and the ancestor of the appellant was
applied to a place a religious
merely the manager of the
worship for which no statutory enactment exists.
charitable institution, the tank. It was contended by
148. A similar question was adjudicated upon by the appellant that even if the
the High Court of Andhra
Inam was granted for a charitable purpose, the
Pradesh in Venkataramana Murthi v Sri Rama object of the charity was a tank
Mandhiram94, upon which
which could not be considered a charitable
reliance was placed. In this case, the court was institution. The three judge Bench of
required to assess whether an
this Court, speaking through Justice KS Hegde
idol was a pre-requisite for a place of worship to be held:
a temple within the purview of

105
―9. From the above discussion, it is seen that legal personality upon the disputed property. To
under Hindu Law a tank can be an object of charity analyse this contention, it is
and when a dedication is made in favour of a tank,
the same is considered as a charitable institution. It necessary to consider the case in some detail.
is not necessary for our present purpose to decide
151. In Shiromani Gurdwara, 56 persons moved a
whether that institution can also be considered as a
petition under Section 7(1)
juristic person. Once we come to the conclusion
that the inam with which we are concerned in this of the Sikh Gurdwaras Act 1925 for a declaration
case was an Inam in favour of the ―uracheruvu‖ that certain disputed property
(tank) that tank must be considered as a charitable
institution under the Act.‖ was a Sikh Gurdwara. Upon the issuance of a
(Emphasis supplied) notification to this effect, objections

This Court was only required to assess whether a were raised that the disputed property was a
tank can be considered a dharamshala and dera. The

―charitable institution‖ within the meaning of the Tribunal under the Act dismissed this objection on
Andhra Inams (Abolition and the ground that the petitioners

Conversion into Ryotwari Act) 1956. Hence, it was therein lacked locus. In the meantime, the
categorically clarified that Shiromani Gurdwara Parbandhak

95 (1969) 1 SCR 624 Committee97 claimed that the disputed property

was a Sikh Gurdwara and that
PART J
the ―Guru Granth Sahib‖ was the ―only object of
185 worship and it was the sole
there was no need to advert to whether or not a tank owner of the gurdwara property.‖ The Sikh
is a juristic person. This Gurdwara Tribunal decreed in favour
case does not further the arguments urged by the of the SGPC and held that the disputed property
plaintiffs in Suit 5. ―belonged to SGPC‖.
96 (2000) 4 SCC 146 97 ―SGPC‖
Shiromani Gurdwara Prabandhak Committee
PART J
150. At this stage, it is necessary to advert to the
decision of this Court in 186
Shiromani Gurdwara Prabandhak Committee, 152. On the basis of a farman-e-shahi issued in
Amritsar v Som Nath Dass96. 1921, the Revenue Officer had
In this case, a two judge Bench held the Guru ordered mutation in the name of the ―Guru Granth
Granth Sahib to be a juristic Sahib Barajman Dharamshala
person. Mr Parasaran, learned Senior Counsel Deh‖. Thus, the ownership column of the land
appearing on behalf of the continued in this name till
plaintiffs in Suit 5 placed considerable reliance on objections were filed to the declaration of the land
this decision to contend that as a Sikh Gurdwara. In the
this Court has held physical property simpliciter to appeals before the High Court from the findings of
be a juristic person. Hence, he the Tribunal, a contention was
submitted that there is a legal basis in the raised that the entry in the revenue records in the
jurisprudence of this Court to confer name of the Guru Granth Sahib

106
was void as it is not a juristic person. The High Sahib‖ by itself could stand the test of its being
Court held that the Guru Granth declared as such, it can be declared to be so.‖

Sahib is not a juristic person and consequently, the ―31. Now returning to the question, whether Guru
mutation in the name of the Granth Sahib could be a ‗juristic person‘ or not, or
whether it could be placed on the same pedestal,
Guru Granth Sahib was liable to be set aside. It was we may fist have a glance as the Sikh religion…In
in this context that this Court the Sikh religion, the Guru is revered as the highest
reverential person…
was called to adjudicate whether the Guru Granth
Sahib is a juristic person, 33. The last living Guru, Guru Gobind Singh,
expressed in no uncertain terms that henceforth
capable of owning the disputed property in its own
there would not be any living Guru. The Guru
name.
Granth Sahib would be the vibrating Guru. He
153. Tracing the evolution of the concept of juristic declared that ―henceforth it would be your Guru
person, Justice AP Misra from which you will get all your guidance and
answer‖. It is with this faith that it is worshipped
noted that recognition in law of a juristic person is like a living Guru. It is with this faith and
to sub-serve the needs of the conviction, when it is installed in any gurdwara it
becomes a sacred place of worship. Sacredness of
law and society. The Court held: the gurdwara is only because of placement of Guru
Granth Sahib in it. This reverential recognition of
―19…When the donor endows for an idol or for a
Guru Granth Sahib also opens the hearts of its
mosque or for any institution, it necessitates the
followers to pour their money and wealth for it. It
creation of a juristic person.
is not that it needs it, but when it is installed, it
21…There may be an endowment for a pious or grows for its followers, who through their
religious purpose. It may be for an idol, mosque, obeisance to it, sanctify themselves and also for
church, etc. Such endowed property has to be used running the langer which is an inherent part of the
for that purpose. The installation and adoration of gurdwara.
an idol or any image by a Hindu denoting any god
34. … It cannot be equated with an ―idol‖ as idol
is merely a mode through which his faith and belief
worship is contrary to Sikhism. As a concept or a
is satisfied. This has led to the recognition of an
visionary for obeisance, the two religions are
idol as a juristic person.
different. Yes, for its legal recognition as a juristic
27. The aforesaid conspectus visualizes how person, the followers of both the religions give
―juristic persons‖ was coined to subserve to the them respectively the same reverential value….
needs of the society…Different religions of the
42…for all the reason, we do not find any strength
world have different nuclei and different
in the reasoning of the High Court in recording a
institutionalized places for adoration, with varying
finding that the ―Guru Granth Sahib‖ is not a
conceptual beliefs and faith but all with the same
―juristic person‖. The said finding is not
end.‖ (Emphasis supplied)
sustainable both on fact and law.‖
PART J
The view of the learned judge was that the creation
187 of a juristic person was to

Justice Misra further noted: ensure the legal protection of the religious beliefs
of the faith:
―29…it is not necessary for ―Guru Granth Sahib‖
to be declared as a juristic person that it should be ―28. Faith and belief cannot be judged through
equated with an idol. When belief and faith of two any judicial scrutiny. It is a fact accomplished and
different religions are different, there is no question accepted by its followers. This faith necessitated
of equating one with the other. If ―Guru Granth the creation of a unit to

107
PART J purpose which is at the heart of conferring legal
personality on objects. Different
188
religions are assessed in accordance with their own
be recognised as a ―juristic person‖. All this shows faith and belief. The absence
that a ―juristic person‖ is not roped in any defined
circle. With the changing thought, changing needs of idol worship in Sikhism necessitated the
of the society, fresh juristic personalities were conferral of juristic personality on the
created from time to time.‖
(Emphasis supplied) Guru Granth Sahib which is, according to the tenets
of Sikhism, the Guru.
154. What emerges from a nuanced reading of the
case is this: First, the case Accordingly, it was then held that the disputed
property vested in the Guru Granth
did not relate to the conferment of juristic
personality on immoveable property. PART J

The relevance of this will be considered in the 189

course of this judgement; Second,
Sahib.
as a matter of religion, the tenets of Sikhism are
Thayarammal
opposed to idol worship. Where
156. Lastly, in Thayarammal v Kanakammal98, by
juridical personality was conferred on the idol in
way of writings on a stone
Hindu Law as the physical site of
inscription, the suit properties were dedicated for
jural relations, the same physical corpus was absent
use by the public as a
in Sikhism. This Court was
Dharmachatram (choultry) where travellers and
thus required to locate a corpus upon which
pilgrims could take shelter and be
juridical personality may be
provided with refreshments. The property was
recognised for it was only consequent to this
―dedicated to the general public as
determination that the court could
a resting place.‖ No trustee was mentioned and the
decide whether the disputed property vested in the
witness to the dedication was
Guru Granth Sahib as a
Lord Thyagaraja himself. The plaintiff claimed to
juridical person. As stated above, necessity is often
be in occupation of a part of the
the basis of conferring
dedicated property (Schedule A) and alleged that a
juridical personality. In this case, as it is in the case
portion of the Schedule B
of the idol in Hindu law, it was
property was encroached upon by the defendants
legally expedient to recognise the legal personality
who were liable to be evicted.
of the Guru Granth Sahib as
The defendants contested the suit on the ground
the corpus upon which juridical personality would
that they had acquired title to
be conferred in order to
the portion of the property by way of a purchase
determine whether the property could vest in the
made in a court sale conducted
Guru Granth Sahib.
in the course of executing a compromise decree.
155. The judgment in Shiromani Gurdwara affirms
The High Court concluded that
that there is an underlying

108
the compromise decree was collusive and that the Section 6(5) of the Tamil Nadu Hindu Religious
plaintiff also had no right as an and Charitable Endowments Act

assumed trustee. Accordingly, the Administrator 1959 as a ―charitable endowment‖. This Court
General under the Official held that the dedication of property

Trustees Act 1913 was directed to take over the for a Dharmachatram, is in the strict legal sense,
management of the Trust. The neither a gift nor a trust. This

principle question before this Court was whether a Court held that the property which was dedicated
trust or charitable endowment for a charitable purpose could

had been created. not be claimed by the plaintiff as a trustee or the

defendant as owner. With this
157. The Court analysed the stone inscription and
held that the suit property finding, the Court was of the view that it was the
Tamil Nadu Hindu and
was dedicated for charitable purposes, and it could
not be claimed by the plaintiff Charitable Endowments Act 1959 which governs
the matter and accordingly the
as a trustee or the defendant as an owner. However,
in the course of the suit property shall be taken in control for
administration, management and
98 (2005) 1 SCC 457
maintenance by the State Government and the
PART J Commissioner under the 1959

190 Act.

judgment, Justice DM Dharmadhikari speaking for 158. In assessing the position of the religious
the Court held: charitable institution, this Court

―16. A religious endowment does not create title made certain observations in para 16 upon which
in respect of the property dedicated in anybody‘s reliance has been placed. The
favour. A property dedicated for religious or
charitable purpose for which the owner of the Court proceeded on the premise that the suit
property or the donor has indicated no property had been dedicated for a
administrator or manager becomes res nullius
which the learned author in the book (supra) PART J
explains as property belonging to nobody. Such a
191
property dedicated for general public use is itself
raised to the category of a juristic person. Learned specific purpose and could not be owned by the
author at p. 35 of his commentary explains how defendant. This was to ensure
such a property vests in the person itself as a
juristic person….The idea is the same, namely, the protection of the purpose with which the suit
when property is dedicated for a particular purpose, property was dedicated.
the property itself upon which the purpose is
impressed, is raised to the category of a juristic Significantly, the deed of dedication did not
person so that the property which is dedicated identify a manager for the endowed
would vest in the person so created.‖
property and the court sought to protect the
A close reading of the decision shows that the property by conferring legal
principle contention urged in the
personality on the intention behind the endowment.
case was that the property described as a Though the Court assessed
Dharmachatram is covered under

109
the position of law on the basis of the theoretical law, allowing courts to regulate the legal relations
framework analysed above, the between natural persons and

observations extracted above seem to suggest that the idol and consequently the properties vested in
property itself was elevated the idol. These cases will be

to the status of a juristic person. On an overall adverted to in the event the court determines that
reading of the case as well as the the second plaintiff is a juristic

theoretical exposition which has been adverted to, person.

the observations made have
Faith and belief
to be read in the light of protecting the purpose
behind the endowment and not to 160. The decisions and their observations which
have been adverted to are
suggest that the property itself was conferred legal
personality. premised on the existence of a positive act of
dedication or donation. It is
Dedication of properties
pertinent to note that plaintiffs‘ claim for the
159. The cases referred to Mr C S Vaidyanathan conferment of juristic personality on
pertained to the consequence
the land that is the disputed site is not based on an
of conferring legal personality by this Court on the express dedication. It was
disputed land. Far from
urged that the spot under the central dome where
assisting the contention urged on behalf of the the idols are placed is the birth
plaintiffs in Suit 5, that the second
place of Lord Ram. The faith and belief of the
plaintiff is a juristic person, the cases adverted to worshippers is of paramount
above affirm that the practice of
importance. Hindus perform the parikrama around
conferring legal personality on Hindu idols was the disputed site with the faith
evolved by courts to ensure that
and belief that it marks the birth-place of Lord
the law adequately protected the properties Ram. It has thus been argued that
endowed to religious purposes. As a
‗Asthan Shri Ram Janam Bhumi‘, as a place of
large number of endowments were made to specific religious worship must
idols, courts located the idol
consequently be elevated to the status of a juristic
as a nucleus in which the rights, powers, privileges person by virtue of the faith
and immunities of the
and belief of the worshippers. It was contended that
endowment would vest. Legal personality was the presence of an idol is
conferred to serve the very
dispensable in Hinduism, this contemplates a
specific public interest of protecting properties so situation such as in the case before
endowed and creating a centre
us, where the land is itself worshipped as a deity.
of jural relations. Necessity mandated the creation Devotees pray to the land as
and recognition of an entity in
the birth-place of Lord Ram, and consequently, the
PART J second plaintiff should, it is

192 urged, be recognised as a juristic person.

110
161. The argument which has been urged on behalf question of delineation weighed on the mind of
of the plaintiff in Suit 5 is Justice Sudhir Agarwal who

materially different from the case for conferment stated:

legal personality on a Hindu
―1887. What would be the meaning of word
PART J ―place‖ and what should be its extent? Whether it
would be a small place which normally is required
193 for birth of a human being or whether it will cover
an area of the entire room, house, locality, city or
endowment. In the case of an endowment, courts
sometimes one can say even more that that. We
have recognised the charitable
know that Hindus worship rivers and lakes like
or religious purpose situated in the institution as a Ganga, Yamuna, Narmada, Mansarovar etc. They
basis for conferring juristic are very sacred and pious. At several places a
number of temples etc. on the bank or near the said
personality on the institution. In doing so, the court rivers have been constructed. The very origin of
recognises the pious purpose such sacred rivers is also a place of worship for
Hindus like Gangotri, Yamunotri (state of
of the founder or testator to protect the properties Uttaranchal) and Amarkantak (for river
so endowed. However, it is not
PART J
the case of the plaintiffs in Suit 5 that the property
styled as the second plaintiff is 194

debutter property. Rather, by invoking the Narmada). Can it be said that the entire length
argument of a ―juristic person‖, the these rivers cover would constitute and satisfy the
requirement of a ―juristic personality‖. It is not out
plaintiffs have urged this Court to create an of place that at several places, the temple of Ganga,
additional ground for the conferral of Narmada, Yamuna, etc. have been constructed and
they are religious endowments in their own rights,
legal personality – the faith and belief of the
enjoy all such legal rights and obligations, etc as
devotees. Amongst the ensemble of
are available to such endowments. Similarly certain
arguments advanced before this Court, this hills or mountain or hilly terrains as such are
innovative legal claim is at the heart treated to be places of worship like, Kailash,
Gobardhan, Kamathgiri etc.‖ (Emphasis supplied)
of the present dispute.
Parikrama
162. The first difficulty that arises in accepting the
contention urged by the 163. Despite these difficulties, the learned judge
concluded that ‗Asthan Sri
plaintiffs in Suit 5 stems from the very practical
question of how such immovable Ram Janam Bhumi‘ was a juristic person. It was
urged before us that it is not the
property is to be delineated. Unlike the case of
endowed properties that are entirety of Ayodhya that is the juristic person, but
only the disputed property.
delineated in the instrument or deed of endowment
itself, where legal personality When a question was raised by the Bench as to the
physical boundaries of the
is sought to be conferred on the basis of faith and
belief of the devotees, the alleged juristic person, it was urged that the
performance of the parikrama
devotees themselves may not agree on the exact
contours of this property. The (circumambulation) around the disputed property
delineated the property which

111
was worshipped as the Janmasthan and it is this devotees is adequate for the conferral of legal
property, being divine, upon personality on the deity. In that

which the status of a juristic person must be case, the question before the court concerned
conferred. In this view, the parikrama whether the consecration of a

served to mark the boundaries of the juristic deity with a visible image by the performance of
person. On the other hand, Dr appropriate ceremonies led to

Dhavan urged that the parikrama is merely a form the establishment of a valid deity upon which
of worship and not a method of juridical personality could be

delineating the boundaries of a property. conferred ―for the purpose of the Bihar Land
Reforms (Fixation of Ceiling Area
164. The parikrama may be performed around a
small idol, shrine, temple or and Acquisition of Surplus Land) Act 1961‖. Two
deeds of dedication were
land in which the temple is situated. However, its
principle purpose is to offer executed – one to the deity, Ram Jankijee and the
other to the deity, Thakur
worship to the divine and it is performed with the
belief that the parikrama would Raja. Both deities, recognised as distinct entities,
were given separate properties
result in the performer being the recipient of some
spiritual benefit. The parikrama and put in possession through the shebaits. Both
deities were located in separate
is not performed in order to mark the exact
boundaries of the property to which temples within the dedicated property.

juristic personality is conferred. The performance 166. The Deputy Collector, for the purposes of the
of the parikrama, which is a fixation of ceiling area,

PART J allowed two land units to the deities on the ground

that there are separate deities
195
to which the land was gifted. The Collector
form of worship conducted as a matter of faith and disagreed and allowed a single unit on
belief cannot be claimed as
the ground that the entire property held by both
the basis of an entitlement in law to a proprietary deities was to be managed by a
claim over property.
committee formed under the Religious Trust Board
Ram Jankijee Deities and there was no evidence on

165. The counsel for the plaintiffs in Suit 5 relied 99 (1999) 5 SCC 50
on the observations by this
PART J
Court in Ram Jankijee Deities v State of Bihar99 to
contend that the manner of 196

consecrating a deity is subjective and based on the the property donated to the deities being treated
determination of the differently. This Court sought to

devotees. It was submitted that any method of answer whether the two deities were separate and
consecration chosen by the distinct legal entities. It is

112
pertinent to note that the Single Judge of the High The ahuti to the deity is the ultimate — the learned
Court held that the image of Single Judge however was pleased

the deity styled as Thakur Raja (or Raja Rani) was PART J
not known to Hindu scriptures
197
and hence, there is no second deity to which a
separate dedication could be not to put any reliance thereon. It is not a particular
image which is a juridical person but it is a
made. It is in this context that this Court observed, particular bent of mind which consecrates the
speaking through Justice image.‖

Umesh Banerjee: 167. All the cases relied on by the Court pertain to
the requisites of a temple
―14. Images according to Hindu authorities are of
two kinds: the first is known as swayambhu or self- under various statutes or what constitutes a place of
existent or selfrevealed, while the other is religious worship. The
pratisthita or established. The Padma Purana says:
―The image of Hari (God) prepared of stone, observations of the Court form the basis of locating
earth, wood, metal or the like and established the centre of worship, which
according to the rites laid down in the Vedas,
according to it does not need to have a fixed image
Smritis and Tantras is called the established images
and is based on the faith and
… where the selfpossessed Vishnu has placed
himself on earth in stone or wood for the benefit of belief of the worshippers. The observations of the
mankind, that is styled the selfrevealed.‖ (B.K. Court were in the context of
Mukherjea — Hindu Law of Religious and
Charitable Trusts, 5th Edn.) A swayambhu or self- determining whether a valid deity existed to whom
revealed image is a product of nature and it is anadi a dedication could be made.
or without any beginning and the worshippers
simply discover its existence and such images do The question whether the second deity was a
not require consecration or pratistha but a man- distinct legal person arose due to
made image requires consecration. This man-made
the need to determine the validity of the deed of
image may be painted on a wall or canvas. The
dedication in favour of the
Salgram Shila depicts Narayana being the Lord of
the Lords and represents Vishnu Bhagwan. It is a second deity constituting a separate unit for the
shila — the shalagram form partaking the form of purposes of the Bihar Land
Lord of the Lords, Narayana and Vishnu.‖
Reforms (Fixation of Ceiling Area and Acquisition
The Court then surveyed precedent to hold that of Surplus Land) Act 1961. It is
while an idol is usually
only consequent to the establishment of a valid
consecrated in a temple, it does not appear to be an deity that the dedicated property
essential condition. The
would vest in the established deity in the ideal
Court held: sense.
―16…If the people believe in the temples' 168. It cannot be said that the observations of the
religious efficacy no other requirement exists as court in respect of the
regards other areas and the learned Judge it seems
has completely overlooked this aspect of the Hindu consecration or establishment of a valid deity apply
Shastras — in any event, Hindus have in the with equal force to the
Shastras ―Agni‖ Devta, ―Vayu‖ Devta — these
deities are shapeless and formless but for every conferral of juristic personality on property on the
ritual Hindus offer their oblations before the deity. basis of the faith and belief of

113
the devotees. The rationale underlying the approach deity must be tested against Hindu scriptures and it
adopted by this Court is is in this context that the

clarified in the following observations: court held that divinity is ―formless, shapeless but
it is the human concept of a
―17. One cardinal principle underlying idol
worship ought to be borne in mind ―that particular divine existence which gives it the shape,
whichever God the devotee might choose for the size and the colour.‖
purposes of worship and whatever image he might
set up and consecrate with that object, the image There is no express deed of dedication in the
represents the Supreme God and none else. There is present case. The case of Ram
no superiority or inferiority amongst the different
Jankijee Deities is not an authority for the
Gods. Siva,
proposition that the mere faith and
PART J
belief of the devotees is sufficient for the conferral
198 of juristic personality. While it

Vishnu, Ganapati or Surya is extolled, each in its was adequate for the existence of a place of
turn as the creator, preserver and supreme lord of religious worship, it was on the basis
the universe. The image simply gives a name and
of a deed of dedication that juristic personality was
form to the formless God and the orthodox Hindu
conferred.
idea is that conception of form is only for the
benefit of the worshipper and nothing else‖. (B.K. PART J
Mukherjea — Hindu Law of Religious and
Charitable Trusts, 5th Edn.)‖ 199
(Emphasis supplied)
The sacred hill
The observations in Ram Jankijee Deities were
made in the specific context of 170. In Sir Seth Hukum Chand v Maharaj Bahadur
Singh100, the dispute
consecrating an image based on the faith and belief
of devotees for the concerned two sects of the Jain community with
regard to the rights of worship of
establishment of a deity to which valid dedications
may be made. The a hill of 25 square miles to which religious
significance was attached. According
observations in this case establish that the existence
of a valid deity was not to to the Digambaras, the sacred nature of the hill
demanded that the moment they
be tested against Hindu Shastras but on the basis of
the faith and belief of the set foot on the hill, they must abstain from any
offence against nature, even
devotees. Once the faith and belief of the devotees
had been established, it was spitting. Though this is observed by the
Swetambaris as well, the Digambaras
an express deed of dedication that resulted in the
conferral of juridical personality adopted a position that any course of action which
is inconsistent with their
on the idol. The observations in this case cannot be
equated to the elevation of worship, such as the regular and continuous
employment of human beings on the
property itself as a juristic person.
hill involves a desecration of the hill.
169. The court in that case was concerned with
whether a specific image of a

114
171. In 1918, the Swetambaris acquired, by right to worship. The Privy Council then examined
purchase, the proprietary rights to the range of activities that

the hill from the Raja of Palgunj. Thereafter, were carried out on the hill without a disruption of
sentries and night watchmen were the right to worship, and held

posted on the hill which was accompanied by the that it was not proved that any of the acts
construction of dwelling units complained of, barring the placing of

for them and for other pujaris. The Digambaris the Charans in the three shrines, in the plaint
contended that the proposed abridged the right to worship.

construction of a gate at the foot of the hill was 173. The trial judge concluded that the hill was
intended to obstruct their access debutter property of the deities

to the hill. A suit was instituted contending that the entirely on the belief of its sanctity. Taking
hill was an object of worship exception to these observations, the

for both sects and on account of its special status, Privy Council held:
no construction would take
―The Subordinate Judge has based his finding that
place on it. The trial judge held that the plaintiff the whole hill is the debutter property of the jain
Digambaris were entitled to deities on the belief in its sanctity now entertained
by both sects. As observed by Ross, J., that
ensure that the hill, as endowed property of the evidence undoubtedly establishes beyond a doubt
deities, is kept in an immaculate that in the belief of the Jain community a spiritual
quality in some way attaches to the hill, but this is a
condition in accordance with their faith. The High
matter of faith and cannot in itself determine the
Court reversed this judgment
physical ownership of the hill.‖
and held that the hill was not debutter property but (Emphasis supplied)
the property of the Raja of
The Privy Council explicitly rejected the
Palgunj, whose title was transferred. Further, the contention urged by the Digambaris of a
proposed construction of the
proprietary claim which was based on the faith and
100 (1933) 38 LW 306 (PC)
belief of the sect.
PART J

200
PART J
gate was held not to obstruct the right of worship of
the Digambaris. 201

172. In appeal, the Privy Council examined the The consequence of absolute title
evidence on record to conclude
174. In the present case, the recognition of ‗Asthan
that legal title had vested validly in the Raja. The Sri Ram Janam Bhumi‘ as a
result of previous litigation
juristic person would result in the extinguishment
between the Raja and the Swetambaris had of all competing proprietary
concluded title in favour of the Raja.
claims to the land in question. This conferral of
A suit by the Digambaris in 1903 also admitted the ‗absolute title‘ (resulting from the
title of the Raja subject to their
conferral of legal personality on land) would in
truth render the very concept of

115
title meaningless. Moreover, the extinguishing of was that the land is a Swayambhu deity (i.e. self-
competing claims would arise manifested deity). Mr Parasaran

not by virtue of settled legal principles, but purely contended that an idol is not necessary in Hinduism
on the basis of the faith and for the performance of

belief of the devotees. This cannot be countenanced worship. It was contended that the idol is sacred as
in law. The conferral of legal a symbol of the divinity,

personality by courts is an innovation arising out of however all worship is done to the one indivisible
necessity and convenience. Supreme Being. The multitude

The conferral of legal personality on Hindu idols of idols and deities merely constitute different
arose due to the fundamental facets of the Supreme Being.

question of who the property was dedicated to and Hence, the law must recognize whatever form in
in whom the dedicated land which God manifests. It was

vested. The two clear interests that the law contended that the second plaintiff was a deity that
necessitated protection of were the ‗manifested itself in the land‘

interests of the devotees and the protection of the and therefore the juristic personality of Ram
properties from Janmabhumi vested in the

mismanagement. In the present case, there exists no immovable property of the disputed site. In Mr
act of dedication and Parasaran‘s submission, worship

therefore the question of whom the property was at the disputed site was not offered only to Lord
dedicated to does not arise and Ram but the very land on which

consequently the need to recognise the pious Lord Ram is said to have been born. Reliance in
purpose behind the dedication this regard was placed on the

itself as a legal person also does not arise. existence of several temples where worship was
performed despite the absence
The Swayambhu argument
an idol – most notably at the Chidambaram temple
175. It is pertinent to note that in reply, Mr in Tamil Nadu.
Parasaran advanced a slightly
176. To establish the legal personality of the
different argument. The initial argument advanced second plaintiff, Mr Parasaran
on behalf of the plaintiffs in
urged that as the Ram Janmabhumi is a
Suit 5 was that the performance of worship at the ‗Swayambhu‘ deity, no dedication or
disputed site with the faith and
consecration is required for the court to recognise
belief that the place is the birth-place of Lord Ram its juristic personality. It was
is sufficient for this Court to
contended that the deity, by its very nature
confer on the disputed site juristic personality. The necessitated the performance of a
argument advanced in reply
parikrama around it, which also delineated the
PART J boundaries of the property upon

202 which juristic personality must be conferred. Mr

Parasaran contended that the

116
conferral of juristic personality sub-served the need no physical manifestation has been forthcoming to
to protect the land itself from separate the disputed site

being encroached on or alienated. The land is from any other land simpliciter.
believed to be the birth-place and
101 (1997) 4 SCC 606
is treated reverentially by Hindus who have sought 102 (1999) 5 SCC 50 103 (1969) 1 SCC 555 104
to offer worship there. As a ILR (1909) 37 Cal 128 105 ILR 1888 12 Bom 247
106 (2003) 7 SCC 546 107 (2009) 4 CTC 801 108
consequence, legal personality must be conferred AIR 1971 Mad 405 109 1954 SCR 277 110 (1969)
on the land for its protection. 1 SCR 624 111 (2005) 1 SCC 457 112 (2000) 4
SCC 146 113 AIR 1916 Pat 146
PART J
PART J
203
204
To support these submissions, Mr Parasaran relied
on the following authorities: 178. In Mr Parasaran‘s view, even absent any
distinguishing feature on the
Sri Adi Visheshwara of Kashi Vishwanath Temple
v State of UP101, Ram disputed site to evidence the manifestation of
divinity, the faith and belief of the
Jankijee Deities v State of Bihar102, Yogendra
Nath Naskar v CIT, Calcutta103, devotees is sufficient to recognise that the disputed
site is a Swayambhu deity. At
Bhupati Nath104, Manohar Ganesh Tambekar v
Lakhmiram Govindram105, the heart of the revised argument raised by Mr
Parasaran is that the faith and
Guruvayur Devaswom Managing Committee v C K
Rajan106, Sri belief of the devotees alone is sufficient for this
Court to recognise the disputed
Sabhanayagar Temple, Chidambaram v State of
Tamil Nadu107, Pinchai v site as a Swayambhu deity and consequently confer
upon it legal personality. To
Commissioner, Hindu Religious and Charitable
Endowments Board108, this extent, the contention urged by Mr Parasaran in
his reply converges with the
Saraswathi Ammal v Rajagopal Ammal109;
Kamaraju Venkata Krishna Rao v earlier argument on faith and belief as the sole
basis on which juristic personality
Sub Collector110, Thayarammal v
Kanakammal111, Shiromani Gurdwara must be conferred. In both submissions advanced
by the plaintiffs in Suit 5, the
Prabandhak Committee, Amritsar v Som Nath
Dass112 and Sapneshwar faith and belief of the devotees is claimed to be the
sole basis for the conferral of
Pujapanda v Ratnakar Mahapatra113.
juristic personality. The contentions on faith and
177. Dr Dhavan briefly interjected to contend that
belief have already been
though Hinduism may
analysed above. However, the argument urged that
recognise a Swayambhu deity, all such instances
the disputed land is a
are characterised by the
Swayambhu deity raises additional issues outside
existence of a physical manifestation. Except the
the realm of the Hindu Law of
faith and belief of the devotees,

117
endowments. It is to these issues that it is necessary very fact that Section 92 of the Code of Civil
now to turn. Procedure seeks to protect the same for the same
purpose Article 226 and 32 could also be taken
179. Given the range of arguments advanced by the recourse to. Our attention in this behalf has been
plaintiffs in Suit 5, it is drawn to Yogendra Nath v. CIT and Manohar
Ganesh Tambekar v. Lakhmiram Govindram.‖
necessary to first advert to the cases relied on in
(Emphasis supplied)
reply. The observations relied
The observation that a temple is a juristic person
on have been selectively extracted and once the
formed a part of the
context in which the
submissions made by the counsel and was merely
observations were made are fully understood, they
preserved by the court as a
do not advance the argument
matter of record. There is no evidence that this
set out by Mr Parasaran.
Court accepted the contention
180. Reliance was placed on Guruvayoor
that the temple is a juristic person. No reliance can
Devaswom Managing Committee v
be placed on this decision or
C K Rajan114 to contend that a temple itself is a
the observation in paragraph 40 to contend that a
juristic entity. The dispute
temple is a juristic person.
concerned the mismanagement of temple affairs by
181. Mr Parasaran next relied on Sri Sabhanayagar
the Devaswom Committee. A
Temple, Chidambaram v
114 (2003) 7 SCC 546
State of Tamil Nadu115 to demonstrate the
PART J recorded existence of a temple

205 without any resident idol. The decision records a

brief history of the
three judge Bench of this Court held that devotees
could approach a High Court Chidambaram Temple in Tamil Nadu. Justice T
Raja, speaking for a Division
or the Supreme Court by way of public interest
litigation where their fundamental Bench of the Madras High Court notes:
115 (2009) 4 CTC 801
rights under Article 25 and 26 of the Constitution
were violated by action or PART J

inaction on behalf of the state authorities. The only 206

reference to a temple being a
―…The Chidambaram Temple contains an altar
juristic person is recorded at paragraph 40 of the which has no idol. In fact, no Lingam exists but a
judgement. Justice S B Sinha curtain is hung before a wall, when people go to
worship, the curtain is withdrawn to see the
noted: ‗Lingam‘. But the ardent devotee will feel the
divinely wonder that Lord Siva is formless i.e.,
―40. … A proceeding initiated as a public interest space which is known as ―Akasa Lingam‖.
litigation would lie before the High Court or this Offerings are made before the curtain. This form of
Court, according to Mr Subba Rao, where it was worshipping space is called the ―Chidambara
found that despite existence of statutory provisions rahasyam‖, i.e. the secret of Chidambaram.‖
the State or the other statutory functionaries were
not taking recourse to the provisions thereof for The decision supports Mr Parasaran‘s argument
remedying the grievances of the devotees. In any that there can exist a temple
event, as a Hindu temple is a juristic person the

118
without an idol. An idol is one manifestation of the (Administrations Department) Madras116 to
divine and it cannot be said contend that a temple continues to

that absent an idol, there exists no divinity to which be recognised as a site of public religious worship
prayer may be offered. even absent the presence of

However, the question before the Madras High an idol. The case concerned the
Court was whether the appellant Kalyansundareswarar temple in Avaniyapuram.

and his predecessors were the founders of the In the early twentieth century, one Chockalingam
temple and whether it was a Pillai executed a deed of

denominational temple for the purposes of state dedication for the construction, installation and
regulation of the temple‘s secular continued upkeep for four idols,

affairs. The High Court did not consider whether a including Sri Kalyansundareswar. Chockalingam
temple could be a juristic Pillai died in 1926 and by virtue

person and the decision does not support Mr of a compromise deed in 1954 the appellants before
Parasaran‘s contention that the the Madras High Court

mere worship of empty land or ‗space‘, absent a came to be the managing trustees. The appellants
physical manifestation could were accused of failing in their

confer juristic personality. Moreover, the facts of upkeep and service of the idol and the
the case are materially different Commissioner of Hindu Religions and

from the present case as the Chidambaram Temple Charitable Endowments framed a scheme to take
is a physical structure built over management of the

around a specific spot that is considered holy. temple. The appellants challenged the competence
Despite the absence of an idol, the of the Commissioner on the

temple serves as the physical manifestation of the ground that the temple was not a temple under
deity and demonstrates the Section 6(20) of the Madras

institutional nature of the worship. This is in Hindu Religious and Charitable Endowments Act
contrast to the present case. Worship 1959. The primary contention of

is offered to the idol of Lord Ram. The disputed the appellants was that the idols in the
site is a site of religious Kalyansundareswarar temple had not

significance, but that itself is not sufficient to been duly installed and consecrated. Justice K
confer juridical personality on the Reddy speaking for the Division

land. Bench of the Madras High Court held that the

existence of an idol was not
PART J
necessary for a place of public worship to be a
207 ―temple‖ under Section 6(20) of

182. Reliance was also placed on Pichal alias the said Act. He further observed:
Chockalingam Pillai v The
―… It does not appear that the aforesaid idols in
Commissioner for Hindu Religions and Charitable the said temples have been installed and
Endowments consecrated according to the rituals and ceremonies
enjoined by Agama Sastras. They have become

119
places of public religious worship by long use of ‗Gurupuja‘ of her former husband‘s tomb. It was
the place as such by the Hindu community. We are, urged by the appellants in the
therefore, of the view that the installation and
consecration of idols with ceremonies like Prana case that the dedication was for the performance of
pratishta etc, prescribed by Hindu puja and an annual ‗sradh‘
116 AIR 1971 Mad 405
on a significant scale, and the dedication was thus
PART J for a religious and charitable

208 purpose. In rejecting this contention, Justice B

Jagannadhadas, speaking for a
Sastras is not the sine qua non for public religious
worship. In any event, it is not a legal requisite three judge Bench of this Court observed:
under the definition of a ‗temple‘ in the Act…‖
―6…To the extent, therefore, that any purpose is
Two points must be noted: First, the observations claimed to be a valid one for perpetual dedication
of the Court are made in the on the ground of 117
1954 SCR 277
context of satisfying a pre-existing statutory
definition of a ‗temple‘. It is in this PART J

context, that the Madras High Court notes that the 209
existence of an idol is not a
religious merit though lacking in public benefit, it
pre-requisite to satisfy the statutory definition of a must be shown to have a Shastric basis so far as
temple. Second, the case does Hindus are concerned. No doubt since then other
religious practices and beliefs may have grown up
not discuss the question whether a temple, even and obtained recognition from certain classes, as
absent an idol, can be a juristic constituting purposes conducive of religious merit.
If such beliefs are to be accepted by courts as being
person. It is pertinent to note that absent an idol, sufficient for valid perpetual dedication of property
the temple itself had existed for therefor without the lement of actual or presumed
public benefit it must be at least shown that they
several years. In light of these observations, the
have obtained wide recognition and constitute the
decision does not support Mr
religious practice of a substantial and large class of
Parasaran‘s argument that absent an idol or any persons. That is a question which does not arise for
express form of manifestation or direct decision in this case. But it cannot be
maintained that the belief in this belief of one or
recognition, land can constitute a juristic person. more individuals is sufficient to enable them to
make a valid settlement permanently tying up
183. Mr Parasaran relied on the decision in property. The heads of religious purposes
Saraswathi Ammal v Rajagopal determined by belief in acquisition of religious
merit cannot be allowed to be widely enlarged
Ammal117 to argue that the widespread belief and
consistently with public policy and needs of
worship of the land styled as
modern society.‖ (Emphasis supplied)
Ram Janmbhumi is sufficient to recognise it as a
The above decision deals with whether a
juristic person. The case
substantial and widespread practice of
concerned a settlement deed whereby a widow
a large number of Hindus would warrant its
dedicated in perpetuity the
recognition as a religious or
revenue of certain immovable properties for the
charitable practice. Further, the court expressly
performance of daily puja and
observes it was not necessary to

120
answer this question as the ground of public policy merely facets of the single indivisible God. It was
is sufficient to discredit the thus contended that every

practice of tomb-worship by a few stray manifestation of the indivisible God is worthy of

individuals. It does not deal with the legal protection and the

question when a court should confer juristic conferment of legal personality.

personality, either on an idol or on
185. This Court in Yogendra Nath Naskar v CIT,
land. While a particular practice may or may not be Calcutta120 drew a distinction
recognised by a court as
between the perception of the devotee that the idol
―religious‖ or ―charitable‖ depending on the scale is a manifestation of the
of adoption of the practice, a
Supreme Being and the position in law that legal
parallel cannot be drawn with the concept of personality is conferred on the
juristic person which operates in an
pious purpose of the testator that is entitled to legal
entirely different field of law. The decision does protection. Hinduism is an
not support the contention that
expansive religion that believes divinity in the form
widespread belief in the religious nature of a site is of the Supreme Being is
sufficient to confer upon that
present in every aspect of creation. The worship of
site legal personality. God in Hinduism is not limited

PART J to temples or idols but often extends to natural

formations, animals and can even
210
extend to everyday objects which have significance
Lastly Mr Parasaran sought to rely on two in a worshipper‘s life. As a
decisions, Sapneswar Pujapanda v
matter of religion, every manifestation of the
Ratkanar Mahapatra118 and Sri Adi Visheshwara Supreme Being is divine and worthy
of Kashi Vishwanath
118 AIR 1916 Pat 146
Temple v State of UP119 to contend that the 119 (1997) 4 SCC 606 120 (1969) 1 SCC 555
second plaintiff in Suit 5 is a
PART J
‗Swayambhu‘ deity which has a recognised legal
personality. The decisions 211

merely note that Hinduism recognises the concept of worship. However, as a matter of law, every
of a Swayambhu deity, which manifestation of the Supreme

is not contested by either of the parties to the Being is not a legal person. Legal personality is an
present dispute. Neither decision innovation arising out of legal

advances the argument set out by Mr Parasaran. necessity and the need for adjudicative utility. Each
The substantive content of the conferment of legal

arguments advanced by the plaintiffs in Suit 5 is personality absent an express deed of dedication
dealt with next. must be judged on the facts of

184. Mr Parasaran submitted that the various the case and it is not a sound proposition in law to
deities and idols in Hinduism are state that every manifestation

121
of the Supreme Being results in the creation of a PART J
legal person.
212
186. In the present case, it was contended that the
land forming the disputed personality would continue to vest in the pious
purpose of the dedication itself.
site is itself the manifestation of Lord Ram.
Significant reliance was placed on the However, that is not the situation in the present
case. In the case of the second
existence of certain temples which do not possess
idols, in particular the plaintiff in Suit 5, there exists no express deed of
dedication.
Chidambaram temple in Tamil Nadu, to advance
two legal propositions: First, that 187. It is true that merely because the second
plaintiff is not an idol, and there
a Hindu deity possessing juristic personality could
exist even absent an idol, and exists no deed of dedication, it is not precluded
from being conferred with legal
second that unadorned land, absent any
distinguishing features, could constitute personality. Swayambhu deities, by the very fact
that they are manifested from
a Swayambhu deity and consequently a juristic
person. As noted above, the nature, may not fit the description of an idol in the
traditional sense. Courts are
cases relied upon by Mr Parasaran with respect to
the Chidambaram and not barred from recognising such a material
manifestation of the divine as a
Kalyansundareswar temple do not refer to the
conferral of juristic personality. juristic person. The manifestation in a material
form is what is the defining
However, it is true than an idol is not a pre-
requisite for the existence of a juristic feature. In the present case however, the arguments
advanced in reply on behalf
person. Where there exists an express deed of
dedication, the legal personality of the plaintiffs in Suit 5 rest on a two-fold claim:
First, that no material
vests in the pious purpose of the founder. The idol
is the material embodiment of manifestation is required for the conferral of
juristic personality in the case of a
the pious purpose and is the site of jural relations.
There are instances of the Swayambhu deity. In this view, the performance of
worship with the faith and
submergence or even destruction of the idol inspite
of which it has been held that belief that corporeal property represents the divine
is adequate for the conferral
the legal personality continues to subsist. Even if a
testator were to make a of juristic personality. Second, in the alternative,
assuming that a material
dedication to a religious purpose but the idol did
not exist at the time the manifestation is a pre-requisite for a Swayambhu
deity, the land at the disputed
dedication was made or the manifestation of the
divine was not in the form of the site represents the material manifestation and given
the performance of religious
idol, but in the form of some other object of
religious significance, the legal worship, no further evidence is required for the
conferral of juristic personality.

122
Several examples of temples without idols were ‗discovered as existing‘ as opposed to a traditional
placed before this court, idol that is hand-crafted and

including that of the Chidambaram Temple to consecrated by the prana pratishta ceremony. The
contend that the deity of Ram had word ‗swayam‘ means ‗self‘ or

manifested itself in the form of land itself. ‗on its own‘, ‗bhu‘ means ‗to take birth‘. A
According to the plaintiffs in Suit 5, the Swayambhu deity is one which has

birth of Lord Ram at the disputed site is the manifested itself in nature without human
revelation, and the resident deity of craftsmanship. Common examples of

Ram Janmabhumi manifests itself in the form of these deities are where a tree grows in the shape of
the land that it is the disputed a Hindu God or Goddess or

land. At the Chidambaram Temple, there exists no where a natural formation such as ice or rock takes
idol of the resident deity, Lord the form of a recognised

PART J Hindu deity.

213 190. Dr Dhavan contended that any case of

Swayambhu deity would
Siva. A curtain exists at the altar. At the time of
worship, the curtain is drawn necessarily need to be based on: (i) some evidence
of the manifestation of God
away and the altar is revealed to have an empty
space. The empty space at the in a material form followed by; (ii) faith and belief
that a particular piece of
altar is the subject of the prayers and devotees
regularly leave offerings at the corporeal property represents the divine; and (iii) in
the absence of traditional
altar. Mr Parasaran sought to draw a parallel to
demonstrate how empty space PART J

itself, absent any idol or distinguishing features, 214

was the subject of worship and
prana parishta ceremonies of consecration, some
constituted a valid deity upon which juristic institutionalised worship
personality could be conferred.
constituting recognition by the religion itself that
188. The arguments urged by Mr Parasaran in his the manifestation was a deity. In
reply raise three questions
this view, a Swayambhu deity is premised on faith
for our determination: First, whether a Swayambhu and belief coupled with a
deity may be recognised
physical manifestation and religious recognition.
absent a physical manifestation; second, whether
land can constitute a 191. A Swayambhu deity is the revelation of God
in a material form which is
manifestation of the deity; and third, whether legal
personality can be conferred subsequently worshipped by devotees. The
recognition of a Swayambhu deity is
on immovable property per se.
based on the notion that God is omnipotent and
189. A Swayambhu deity is a manifestation of God may manifest in some physical
that is ‗self-revealed‘ or

123
form. This manifestation is worshipped as the ordinary land which was witness to some event of
embodiment of divinity. In all these religious significance

cases, the very attribution of divinity is premised associated with the human incarnation of a deity
on the manifestation of the deity (e.g. the site of marriage, or the

in a material form. Undoubtedly, a deity may exist ascent to a heavenly abode) is in fact a Swayambhu
without a physical deity manifested in the form

manifestation, example of this being the worship of land. If the argument urged by Mr Parasaran that
offered to the Sun and the Wind. there is no requirement of a

But a Swayambhu is premised on the physical physical manifestation is accepted, it may well be
manifestation of the Divine to claimed that any area of

which faith and belief attaches. religious significance is a Swayambhu deity which
deserves to be recognised as
192. The difficulty that arises in the present case is
that the Swayambhu deity a juristic personality. This problem is compounded
by the fact that worship to a
seeking recognition before this Court is not in the
form ordinarily associated with particular deity at a religious site and to the land
underlying a religious site are for
the pantheon of anthropomorphised Hindu Gods.
The plaintiffs in Suit 5 have all intents and purposes, indistinguishable. Hence,
in order to provide a sound
sought to locate the disputed land as a focal point
by contending that the very jurisprudential basis for the recognition of a
Swayambhu deity, manifestation is
land itself is the manifestation of the deity and that
the devotees‘ worship not only crucial. Absent that manifestation which
distinguishes the land from other
the idols of Lord Ram, but the very land itself. The
land does not contain any property, juristic personality cannot be conferred
on the land.
material manifestation of the resident deity Lord
Ram. Absent the faith and belief 193. It is conceivable that in certain instances the
land itself would possess
of the devotees, the land holds no distinguishing
features that could be certain unique characteristics. For example, it may
be claimed that certain
recognised by this court as evidence of a
manifestation of God at the disputed patterns on a sea-shore or crop formations represent
a manifestation of the
PART J
divine. In these cases, the manifestation is
215 inseparable from the land and is tied

site. It is true that in matters of faith and belief, the up to it. An independent question arises as to
absence of evidence may not whether land can constitute the

be evidence of absence. However, absent a physical manifestation of the deity. Even if a court
manifestation, recognising the land recognises land as a

as a self-manifested deity would open the manifestation of a deity, because such land is also
floodgates for parties to contend that governed by the principles of

124
immoveable property, the court will need to Shiromani Gurdwara Parbandhak Committee,
investigate the consequences which Amritsar.121 In that case, a

arise. In doing so the court must analyse the mosque was dedicated in 1722 by one Falak Beg
compatibility of the legal regime of Khan. By the deed of

PART J dedication, Sheikh Din Mohammad and his

descendants were appointed as
216
Mutawallis. Since 1762, however, the building
juristic personality with the legal regime on together with the court-yard, well
immoveable property. It is necessary
and adjacent land, was in the occupation and
now to turn to this. possession of the Sikhs. The land

Property vested in a deity and property as a deity adjacent to the mosque became the site of a Sikh
shrine. At the time of the
194. There is a significant distinction between
property vested in a foundation 121 AIR 1940 PC 116

(as in Roman law) or a deity as a juristic person (as PART J

in Hindu Law) and property
217
per se being a juristic person. Where the property
vests in a foundation annexation by the British in 1849, the Sikhs were
in possession of both the
constituted for a pious purpose, it retains its
characteristics as immoveable mosque and the adjacent lands.

property. This remains true even in cases where the 196. Thereafter, the building was demolished ―by
property vests in the deity in or with the connivance of its

an ideal sense. The purpose of conferring juristic Sikh custodians‖. A suit was instituted in 1935
personality is to ensure both a against Shiromani Gurdawara

centre of legal relations as well as the protection of Parbandhak Committee – who were in possession
the beneficial interest of the of the disputed property,

devotees. It does not however, alter the character of seeking a declaration that the building was a
the property which vests in mosque in which the plaintiffs and

the juristic person. It remains subject to the all the followers of Islam had a right to worship
framework of the law which defines along with a mandatory injunction

all relationships governing rights or interests to reconstruct the building. One of the 18 plaintiffs
claimed in respect of property and was the mosque itself - the site

the liabilities which attach to jural transactions and the building. The Privy Council assessed the
arising out of property. contention that the mosque and

195. This distinction, which highlights the features the adjoining properties were a juristic person.
of immoveable property Rejecting the contention, Justice

received articulation by the Privy Council in The George Rankin held:

Mosque, Masjid Shahid Ganj v
―The argument that the land and buildings of a
mosque are not property at all because they are a

125
―juristic person‖ involves a number of may be divided. However, the recognition of the
misconceptions. It is wholly inconsistent with land itself as a juristic person
many decisions whereby a worshipper or the
mutwalli has been permitted to maintain a suit to may potentially lead to the loss of these essential
recover the land and buildings for the purposes of characteristics. Where juristic
the wakf by ejectment of a trespasser… That there
personality was recognised in corporeal property
should be any supposed analogy between the
itself such as the idol, it served
position in law of a building dedicated as a place of
prayer for Muslims and the individual deities of the the larger purpose for which juristic personality
Hindu religion is a matter of some surprise to their was conferred – to ensure the
Lordships… the procedure in India takes account
necessarily of the polytheistic and other features of execution and protection of the pious purpose set
the Hindu religion and recognizes certain doctrines out by a donor and the ultimate
of Hindu law as essential thereto, e.g. that an idol
may be the owner of property… The decisions protection of the beneficial interest of the
recognizing a mosque as a ―juristic person‖ appear worshippers. However, to confer legal
to be confined to the Punjab : 153 PR 1884;
personality on immoveable property leads to
Shankar Das v. Said Ahmad (1884) 153 PR 1884
consequences that fundamentally
59 PR 1914; Maula Bux v. Hafizuddin (1926) 13
AIR Lah 372 AIR 1926 Lah 372.6 In none of those have no nexus to the limited purpose for which
cases was a mosque party to the suit, and in none juristic personality is conferred. It
except perhaps the last is the fictitious personality
attributed to the mosque as a matter of decision. sets apart immoveable property on which a juristic
But so far as they go these cases support the character is conferred from all
recognition as a fictitious person of a mosque as an
institution - apparently hypostatizing an other species of immoveable property. This will
abstraction. This, as the learned Chief Justice in the lead to the claim that the legal
present case has pointed out, is very
regime which applies to the latter (‗ordinary
PART J immoveable property‘) will not apply

218 to that class of immoveable property which is

recognised as a juristic person in
different from conferring personality upon a
building so as to deprive it of its character as and of itself. The principles of adverse possession
immovable property.‖ (Emphasis supplied) and limitation would, if the

197. The Privy Council noted that if the mosque argument were to be accepted, not apply to the land
was a juristic person, this may as a legal person which is

mean that limitation does not apply to it and that incapable of being ―possessed‖. The conferral of
―it is not property but an owner legal personality in the context

of property.‖ Underlying the line of reasoning of endowments was to ensure the legal protection
adopted by the Privy Council is that of the endowed property, not

the conferral of legal personality on immovable PART J

property could lead to the
219
property losing its character as immoveable
to confer upon the property legal impregnability by
property. Immoveable property, by its
placing it outside the reach of
very nature, admits competing proprietary claims
the law. The elevation of land to the status of a
over it. Immoveable property
juristic person fundamentally

126
alters its characteristics as immoveable property, a addressed elsewhere in the course of the present
severe consequence against judgement. Generally

which a court must guard. Nor is it a valid PART J

safeguard to postulate that the court
220
will decide on a case to case basis where a
particular immoveable property speaking, the court is empowered to address such
situations upon an application
should have a juristic status. Absent any objective
standard of application the under Section 92 of the Code of Civil Procedure
1908. The question of title can
process of drawing lines will be rendered
inherently subjective, denuding the be adjudicated upon using the existing legal regime
applicable to immoveable
efficacy of the judicial process.
property. There is no reason bearing on necessity or
198. The land in question has been treated as convenience that would
immoveable property by all the
compel the court to adopt the novel argument set
parties to the present dispute, including those from forth by the plaintiffs in Suit 5
the Hindu community until
that juristic personality must be conferred on the
1989. The litigation over the disputed property disputed land.
dated back to 1885, and at no
200. The conferral of juristic personality is a legal
point, until Suit 5 in 1989 was a plea taken that the innovation applied by courts in
land in question was anything
situations where the existing law of the day has
possessed of a juristic personality. Apart from the certain shortcomings or such
reasons which have been
conferral increases the convenience of
outlined above, it would not be open for the court adjudication. In the present case, the
to treat the property differently
existing law is adequately equipped to protect the
now, solely on the basis of the novel plea urged by interests of the devotees and
the plaintiffs in Suit 5 in 1989.
ensure against maladministration without
Addressing title claims in a conventional recognising the land itself as a legal
framework
person. Where the law is capable of adequately
199. The facts of the present case raise questions of protecting the interests of the
access of the devotees to
devotees and ensuring the accountable management
the site of religious worship and the question of of religious sites without
who has title to the land. The
the conferral of legal personality, it is not necessary
former may be protected by the court in several to embark on the journey of
ways without the creation of an
creating legal fictions that may have unintended
artificial legal person. The protection against consequences in the future.
mismanagement squarely falls
There is therefore no merit in the argument that
within the domain of who should be recognised as faith and belief, and the
a shebait, and this is
protection of faith and belief alone may necessitate
the conferral of legal

127
personality on the second plaintiff. On the contrary, extinguishing of all competing proprietary claims
there exists a substantial risk over property as well stripping

with adopting this argument. It may be contended the property itself of the essential characteristic of
by a section of a religion that a immoveable property. If the

particular plot of land is the birth-place, place of contention urged on the behalf of the plaintiffs in
marriage, or a place where the Suit 5 is accepted, it results in a

human incarnation of a deity departed for a position in law where claims to ‗absolute title‘ can
heavenly abode; according to the be sustained merely on the

faith and belief of the devotees. Corporeal property basis of the faith and belief of the devotees. The
may be associated with conferral of legal personality on

myriad incidents associated with the human corporeal property would immunise property not
incarnation of a deity each of which merely from competing title

PART J claims, but also render vast swathes of the law that
are essential for courts to
221
meaningfully adjudicate upon civil suits, such as
holds a significant place in the faith and belief of limitation, ownership,
the worshippers. Where does
possession and division, entirely otiose. At best, the
the court draw the line to assess the significance of contention urged on behalf
the belief as the basis to
of the plaintiffs in Suit 5 would sustain a claim that
confer juristic personality on property? In the the specific site is a location of
absence of an objective criterion,
religious significance for the devotees. It cannot
the exercise will be fraught with subjectivity. however be extended to sustain
Adopting the argument of the
proprietary claims to the law or to immunise the
plaintiffs in Suit 5 may result in the conferral of land from proprietary or title
legal personality on all such
PART J
claims to land. This conferral would be to the
detriment of bona fide litigants 222

outside the faith – who may not share the same based claims of others by conferring juristic
beliefs and yet find their title personality on the land itself.

extinguished. Further, such conferral of legal Commitment to constitutional values

personality on immovable property
202. A final observation must be made on this
would be on the basis of the faith and belief of the aspect of the case which is of
devotees, which is
significant importance. The rejection of the
fundamentally subjective and incapable of being contention urged on behalf of the
questioned by this Court.
plaintiffs in Suit 5 touches upon the heart of our
201. The purpose for which juristic personality is constitutional commitment to
conferred cannot be ‗evolved‘
secularism. The method of worship on the basis of
into a trojan horse that permits, on the basis of which a proprietary claim may
religious faith and belief, the

128
be sustained is relatable to a particular religion. The claims over disputed property.
conferral of legal personality
204. It is true that the connection between a person
on idols stemming from religious endowments is a and what they consider
legal development applicable
divine is deeply internal. It lies in the realm of a
only to a practice of the Hindu community. The personal sphere in which no other
performance of the parikrama is
person must intrude. It is for this reason that the
a method of worship confined largely to Hinduism. Constitution protects the
Putting aside the fact that the
freedom to profess, practice and propagate religion
argument raised by the plaintiffs in Suit 5 is a novel equally to all citizens. Often,
extension of the law
the human condition finds solace in worship. But
applicable to Hindu religious endowments, this is a worship may not be confined
significant matter which
into a straightjacket formula. It is on the basis of
requires our consideration. the deep entrenchment of

203. Religious diversity undoubtedly requires the religion into the social fabric of Indian society that
protection of diverse methods the right to religious freedom

of offering worship and performing religious was not made absolute. An attempt has been made
ceremonies. However, that a method in the jurisprudence of this

of offering worship unique to one religion should court to demarcate the religious from the secular.
result in the conferral of an The adjudication of civil claims

absolute title to parties from one religion over over private property must remain within the
parties from another religion in an domain of the secular if the

adjudication over civil property claims cannot be commitment to constitutional values is to be

sustained under our upheld. Over four decades ago, the

Constitution. This would render the law, which Constitution was amended and a specific reference
ought to be the ultimate impartial to its secular fabric was

arbiter, conferring a benefit on a party with respect incorporated in the Preamble. At its heart, this
to her or his legal claims, not reiterated what the Constitution

on the basis of the merits of a particular case, but always respected and accepted: the equality of all
on the basis of the structure or faiths. Secularism cannot be a

fabric of the religion to which they belong. If the writ lost in the sands of time by being oblivious to
contention urged on behalf of the the exercise of religious

PART J freedom by everyone.

223 205. It is for all the reasons highlighted above that

the law has till today yet to
plaintiffs in Suit 5 is accepted, the method of
worship performed by one religion accept the conferral of legal personality on
immoveable property. Religiosity has
alone will be conferred with the power to
extinguish all contesting proprietary moved hearts and minds. The court cannot adopt a
position that accords primacy

129
to the faith and belief of a single religion as the and 3 to the plaint constitute Ram Janmabhumi and
basis to confer both judicial for an injunction against

PART K interference in the construction of a new temple

after the demolition of the
224
existing building.
insulation as well as primacy over the legal system
as a whole. From Shahid

Gunj to Ayodhya, in a country like ours where PART L

contesting claims over property by
225
religious communities are inevitable, our courts
cannot reduce questions of title, The judgment now proceeds to analyse and
adjudicate upon the claims in the
which fall firmly within the secular domain and
outside the rubric of religion, to a suits.

question of which community‘s faith is stronger. L. Suit 1: Gopal Singh Visharad since deceased and
survived by Rajendra Singh v Zahoor Ahmad and
On a consideration of all the factors outlined above, others
it is thus held that the second
L.1 Pleadings
plaintiff in Suit 5 – ‗Asthan Shri Ram Janam
Bhumi‘ is not a juristic person. 207. On 16 January 1950, a suit was instituted by
Gopal Singh Visharad before
K. Analysis of the suits
the Civil Judge at Faizabad, describing himself as a
206. Suit 1 filed by Gopal Singh Visharad is Hindu devotee. He is a
essentially a suit by a worshipper
resident of Ayodhya and follower of ‗Santan
for enforcement of his right to worship Lord Ram Dharm‘. His grievance was that he
at the Janmabhumi. Suit 3 filed
was being prevented by officials of the government
by Nirmohi Akhara is for handing over the from entering the inner
management and charge of the
courtyard of the structure to offer worship. The
Janmabhumi temple to it. Suit 4 filed by Sunni plaintiff claims that he is entitled to
Central Waqf Board is for a
worship the deity of Lord Ram. The following
declaration that the entirety of the disputed site, reliefs were sought:
including Babri Masjid and the
(i) A declaration of his entitlement to worship and
surrounding graveyard, is a public mosque and for seek the darshan of Lord
a decree for possession. Suit
Ram, ―according to religion and custom‖ at the
5 is filed by the deity of Lord Ram and the Janmabhumi temple
Janmasthan (both of whom are
without hindrance; and
asserted to be juridical persons) through a next
friend impleaded as a third (ii) A permanent and perpetual injunction
restraining defendants 1 to 10 from
plaintiff for a declaration that the entire premises
comprised of annexures 1, 2 removing the idols of the deity and other idols from
the place where they

130
were installed; from closing the way leading to the worship there. Babur laid out annual grants for the
idols; or interfering in maintenance and

worship and darshan. expenditure of the mosque, which were continued

and enhanced by the
The cause of action for Suit 1 is stated to have
arisen on 14 January 1950, when Nawab of Awadh and the British Government;

the employees of the government are alleged to (iii) The Suit of 1885 was a suit for declaration of
have unlawfully prevented the ownership by Mahant

plaintiff ―from going inside the place‖ and Raghubar Das only in respect of the Ramchabutra
exercising his right of worship. It was and hence, the claim

PART L that the entire building represented the Janmasthan

was baseless. As a
226
consequence of the dismissal of the suit on 24
alleged that the ―State‖ adopted this action at the December 1885, ―the case
behest of the Muslim residents
respecting the Chabutra was not entertained‖;
represented by defendant nos 1 to 5, as a result of
which the Hindus were stated (iv) The Chief Commissioner, Waqf appointed
under the Muslim Waqf Act
to been deprived of their ―legitimate right of
worship‖. The plaintiff apprehended 1936 had held the mosque to be a Sunni Waqf;

that the idols, including the idol of Lord Ram, PART L

would be removed. These actions
227
were alleged to constitute a ―direct attack on the
right and title of the plaintiff‖ and (v) Muslims have always been in possession of the
mosque. This position
was stated to be an ―oppressive act‖, contrary to
law. began in 1528 and continued thereafter, and
consequently, ―Muslims are in
208. Denying the allegations contained in the
plaint, the Muslim defendant nos possession of that property… by way of an adverse
possession‖;
1 to 5 stated in their written statement that:
(vi) Namaz had been offered at Babri Masjid until
(i) The property in respect of which the case has 16 December 1949 at which
been instituted is not
point there were no idols under the central dome. If
Janmabhumi but a mosque constructed by Babur. any person had placed
The mosque was built in
any idol inside the mosque with a mala fide intent,
1528 on the instructions of Babur by Mir Baqi, ―the degradation of the
who was the Commander of
mosque is evident and the accused persons are
his forces, following the conquest of the sub- liable to be prosecuted‖;
continent by the Mughal
(vii) Any attempt of the plaintiff or any other
emperor; person to enter the mosque to offer

(ii) The mosque was dedicated as a waqf for worship or for darshan would violate the law.
Muslims, who have a right to Proceedings under Section

131
145 of the CrPC 1898 had been initiated; and Magistrate and defendant no 9, the Superintendent
of Police.
(viii) The present suit claiming Babri Masjid as the
place of the Janmasthan is Defendant no 10, the Sunni Central Waqf Board
filed its written statement stating:
without basis as there exists, for quite long, another
temple with idols of (i) The building in dispute is not the Janmasthan of
Lord Ram and no idols
Lord Ram and others, which is the actual place of
the Janmasthan of Lord were ever installed in it;

Ram. (ii) The property in suit was a mosque known as

the Babri mosque
A written statement was filed by defendant no 6,
the State, submitting that: constructed during the regime of Emperor Babur
who had laid out annual
(i) The property in suit known as Babri Masjid has
been used as a mosque for grants for its maintenance and expenditure and they
were continued and
the purpose of worship by Muslims for a long
period and has not been enhanced by the Nawab of Awadh and the British
Government;
used as a temple of Lord Ram;
(iii) On the night of 22-23 December 1949, the
(ii) On the night of 22 December 1949, the idols of idols were surreptitiously
Lord Ram were
brought into the mosque;
surreptitiously placed inside the mosque
imperilling public peace and (iv) The Muslims alone had remained in possession
of the mosque from 1528
tranquillity. On 23 December 1949, the City
Magistrate passed an order up to 29 December 1949 when it was attached
under Section 145. They
under Section 144 of CrPC 1898 which was
followed by an order of the had regularly offered prayers up to 23 December
1949 and Friday prayers
same date passed by the Additional City Magistrate
under Section 145 up to 16 December 1949;

PART L (v) The mosque had the character of a waqf and its
ownership vested in God;
228
(vi) The plaintiff was estopped from claiming the
attaching the disputed property. These orders were mosque as the Janmabhumi
passed to maintain
of Lord Ram as the claim in the Suit of 1885
public peace; and instituted by Mahant

(iii) The City Magistrate appointed Shri Priya Datt PART L

Ram, Chairman, Municipal
229
Board, Faizabad-cum Ayodhya as a receiver of the
property. Raghubar Das (described to be the plaintiff‘s
predecessor) was confined
Similar written statements were filed by defendant
no 8, the Additional City only to the Ramchabutra measuring seventeen feet
by twenty one feet

132
outside the mosque; and  Justice S U Khan – Idols were kept on the pulpit
inside the mosque for
(vii) There already existed a Ram Janmasthan
Mandir, a short distance away the first time during the night of 22-23 December
1949.
from Babri Masjid.
 Justice Sudhir Agarwal – Idols were placed
In the plaintiff‘s replication to the written statement under the central dome of
of defendant nos 1 to 5, it was
the disputed structure, within the inner courtyard,
averred that the disputed site had never been used during the night of 22-23
as a mosque since 1934. It
December 1949 but before it they existed in the
was further stated that it was ―common outer courtyard.
knowledge‖ that Hindus were in
 Justice D V Sharma - Decided against the
continuous possession by virtue of which the claim defendants.
of the defendants ceased.
3. Has the plaintiff any right to worship the
L.2 Issues and findings of the High Court ‗Charan Paduka‘ and the

209. 1. Is the property in suit the site of Janam idols situated in the place in suit?
Bhumi of Sri Ram
 Justice S U Khan – The only thing which can be
Chandraji? said is that Ramchabutra

 Justice S U Khan - No temple was demolished came into existence before the visit of Tieffenthaler
for constructing the but after construction of

mosque. Until the mosque was constructed during the mosque. Both parties were in joint possession.
the period of Babur, the
 Justice Sudhir Agarwal – The plaintiff has a
premises in dispute were not treated as or believed right to worship subject to
to be the birth-place of
reasonable restrictions like safety, maintenance and
Lord Ram. security.

 Justice Sudhir Agarwal - The place of birth as  Justice D V Sharma - Decided in favour of the
believed and worshiped by defendants.

the Hindus is the area covered under the central 4. Has the plaintiff the right to have darshan of
dome of the disputed the place in suit?

structure in the inner courtyard.  Justice S U Khan – The only thing which can be
said is that Ramchabutra
 Justice D V Sharma - Decided against the
defendants. came into existence before the visit of Tieffenthaler
but after construction of
PART L
the mosque. Both parties were in joint possession.
230
 Justice Sudhir Agarwal – The plaintiff has a
2. Are there any idols of Bhagwan Ram
right to worship subject to
Chandra Ji and are his Charan
reasonable restrictions like safety, maintenance and
Paduka situated in the site in suit?
security.

133
PART L  Justice Sudhir Agarwal – Answered in the
negative.
231
PART L
 Justice D V Sharma – Decided in favour of the
defendants. 232

5(a). Was the property in suit involved in original  Justice D V Sharma – Decided in favour of the
Suit no 61/280 of 1885 in defendants.

the court of sub-judge (Faizabad Raghubar Das 6. Is the property in suit a mosque constructed
Mahant v Secretary of by Babur commonly

State for India and others)? known as Babri Mosque, in 1528 A.D?

 Justice S U Khan – Nothing was decided in the  Justice S U Khan – The construction of a
Suit of 1885 and res mosque took place by or under

judicata does not apply. the orders of Babur. Whether it was actually built
by Mir Baqi or someone
 Justice Sudhir Agarwal – Answered in the
negative. else is not material. Muslims offered regular
prayers until 1934, after which
 Justice D V Sharma – Property existed as nazul
land. until 22 December 1949 only Friday prayers were
offered. This is sufficient
5(b). Was it decided against the plaintiff?
for continuous possession and use. No temple was
 Justice Sudhir Agarwal – Suit of 1885 was demolished for the
decided against Mahant
construction of the mosque.
Bhaskar Das and no relief was granted to him.
 Justice Sudhir Agarwal – Plaintiffs have failed
 Justice D V Sharma - Property existed as nazul to prove the construction
land.
of the structure by Babur in 1528 A. D.
5(c). Was that suit within the knowledge of
Hindus in general and were all  Justice D V Sharma – Decided against the
defendants.
Hindus interested in the same?
7. Have the Muslims been in possession of the
 Justice Sudhir Agarwal – Answered in the property in suit from
negative. No material on
1528 A.D. continuously, openly and to the
record to justify that the suit was filed by Mahant knowledge of the
Raghubar Das in a
defendants and Hindus in general? If so, its effect?
representative capacity.
 Justice S U Khan – Title follows possession and
 Justice D V Sharma – Decided in favour of the both parties were in joint
defendants.
possession of the disputed premises.
5(d). Does the decision in same bar the present suit
by principles of res  Justice Sudhir Agarwal – Decided in favour of
the plaintiff.
judicata and in any other way?

134
 Justice D V Sharma – Decided in favour of the  Justice D V Sharma – Decided in favour of the
defendants. defendant.

8. Is the suit barred by proviso to Section 42 of 9(c). Are the said provisions of the U.P. Act 13 of
the Specific Relief Act? 1936 ultra vires for

 Justice S U Khan – Not barred. reasons given in the statement of plaintiff's counsel
dated 9.3.62
 Justice Sudhir Agarwal – Not barred.
recorded on paper no. 454-A?
PART L
 Justice S U Khan – Agrees with the findings of
233 Justice Sudhir Agarwal.

 Justice D V Sharma – Decided in favour of the  Justice Sudhir Agarwal – Answered in the
defendants. negative.

9. Is the suit barred by the provisions of Section PART L

5(3) of the Muslim Waqf
234
Act (U.P. Act 13 of 1936)?
10. Is the present suit barred by time?
 Justice S U Khan – Agrees with the findings of
Justice Sudhir Agarwal.  Justice S U Khan, Justice Sudhir Agarwal and
Justice D V Sharma –
 Justice Sudhir Agarwal – Decided in favour of
the plaintiff. The suit is not barred by limitation.

 Justice D V Sharma – Decided in favour of the 11(a).Are the provisions of section 91 C.P.C.
defendants. applicable to the present suit?

9(a). Has the said Act no application to the right If so, is the suit bad for want of consent in writing
of Hindus in general and by the Advocate

plaintiff of the present suit, in particular to his right General?

of worship?
 Justice S U Khan – Agrees with the findings of
 Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal
Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in the
 Justice Sudhir Agarwal – In favour of the Hindu negative.
parties in general.
 Justice D V Sharma – Decided in favour of the
 Justice D V Sharma – Decided in favour of the plaintiff.
defendants.
11(b). Are the rights set up by the plaintiff in this
9(b). Were the proceedings under the said Act, suit independent of the
referred to in para 15 of the
provisions of section 91 CPC? If not, its effect.
written statement, collusive? If so its effect?
 Justice S U Khan – Agrees with the findings of
 Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal.
 Justice Sudhir Agarwal – Answered in the
 Justice Sudhir Agarwal – Decided against the affirmative.
plaintiff.

135
 Justice D V Sharma – Decided in favour of the 16. Are the defendants or any of them entitled to
plaintiff. special costs under

12. Is the suit bad for want of steps and notice Section 35-A CPC?
under Order 1, Rule 8
 Justice S U Khan – Agrees with the findings of
CPC? If so, its effect? Justice Sudhir Agarwal.

 Justice S U Khan – Agrees with the findings of  Justice Sudhir Agarwal – Counsel did not press
Justice Sudhir Agarwal. the issue.

 Justice Sudhir Agarwal and Justice D V Sharma  Justice D V Sharma – Plaintiff is not entitled for
– Answered in favour relief and suit dismissed

of the plaintiff. with easy costs.

13. Is the Suit 2 of 50 (Shri Gopal Singh 17. To what reliefs, if any, is the plaintiff
Visharad v Zahoor Ahmad) bad entitled?

for want of notice under Section 80 CPC?  Justice S U Khan – Agrees with the findings of
Justice Sudhir Agarwal
PART L
 Justice Sudhir Agarwal – The plaintiff‘s right of
235 worship cannot be

 Justice S U Khan – Agrees with the findings of doubted since the site in dispute includes part of the
Justice Sudhir Agarwal. land which is believed

 Justice Sudhir Agarwal – Not rejected as barred. PART L

 Justice D V Sharma – Decided in favour of the 236

defendants.
to be the place of birth of Lord Ram. To this extent
14. Is the Suit no 25 of 50 Param Hans Ram the plaintiff is entitled for
Chandra v Zahoor Ahmad
a declaration subject to restrictions which may be
bad for want of valid notice under Section 80 CPC? necessary on account of

 Justice S U Khan – Agrees with the findings of security, safety and maintenance of the place of
Justice Sudhir Agarwal. worship.

 Justice Sudhir Agarwal and Justice D V Sharam  Justice D V Sharma – Plaintiff is not entitled for
– Issue redundant relief and suit is

after dismissal of the suit as withdrawn. dismissed with easy costs.

15. Is the suit bad for non-joinder of the L.3 Analysis

defendants?
210. Mr Ranjit Kumar, learned Senior Counsel
 Justice S U Khan – Agrees with the findings of appearing on behalf of the
Justice Sudhir Agarwal.
Plaintiff in Suit 1 adverted to the order of the
 Justice Sudhir Agarwal and Justice D V Sharma Magistrate dated 29 December
– Answered in the
1949, under Section 145 CrPC by which the
negative and in favour of the plaintiff. disputed premises were attached

136
and a receiver was appointed. Learned Counsel None of the author of the said documents have
stated that fourteen affidavits been produced and they are also not party to the
proceedings individually. We have no benefit of
were filed by certain Muslims under Order XIX, testifying the correctness of the contents of the said
Rule 1 of the CPC between 8-16 documents. In the absence of any one available to
prove the contents of the said documents, in our
February 1950, stating that:
view, the same cannot be relied and therefore,
(i) The place where the Babri Masjid was situated nothing turns out from the aforesaid documents
is the birth-place of Lord either in favour or against any of the parties.‖

Ram. The Babri Masjid was built by ‗breaking‘ the Justice S U Khan agreed with the observations
birth-place of Lord Ram; made by Justice Sudhir Agarwal.

(ii) After British Rule, Muslims were only reading However, Justice D V Sharma has held the
Friday namaz in the mosque; affidavits to be admissible and

(iii) After the construction of the Masjid, Hindus observed that:

did not give up their
―...affidavits of the persons under or through
possession and continued to worship there; whom the plaintiffs are claiming were sworn before
an official empowered by the Magistrate are
(iv) Both Hindus and Muslims continued to admissible evidence...‖
worship at the disputed site;
212. Mr Ranjit Kumar, has made the following
(v) Post the riots of 1934, Muslims had stopped submissions:
going to the Masjid out of fear
(i) The Suit of 1885 will have no impact on the
and ever since, the Hindus had taken possession of present suit as in the earlier
the main place in the
suit the relief sought was for the permission to
mosque; and establish a temple over a

(vi) There was no objection if the possession of the platform which was confined to the Chabutra
mosque was to be handed outside the mosque.

over to the Hindus as reading namaz at that place However, the present suit is with respect to the
was against the Shariat. right to worship and seek

PART L the darshan of Lord Ram, ―according to religion

and custom‖ at the
237
Janmabhumi temple;
211. Justice Sudhir Agarwal did not pay any
credence to the affidavits and held (ii) On 3 March 1951, the Trial Court confirmed
the ad-interim order dated 19
that:
January 1950 passed in Suit 1 by which the
―3020... The aforesaid documents to the extent to injunction was modified to
prove the fact that the same were filed before the
Magistrate and constitute part of the record of 145 PART L
Cr.P.C. proceeding before the City Magistrate is
not disputed but to believe the contents thereof, in 238
our view, it was necessary to produce the authors
prevent the idols from being removed from the
of the documents and to give an opportunity of
disputed site and from
crossexamination to the other parties against whose
interest the documents contain certain averments.

137
causing interference in the performance of puja. plaintiff. The Civil Judge by an order dated 27
The trial judge referred to October dismissed the

the affidavits of certain Muslim residents of application;

Ayodhya and stated that at
PART L
least from 1936 ―the Muslims have neither used
this site as a mosque nor 239

offered prayers there‖ and ―the affidavits referred (vii) During the course of arguments before this
do make out a prima Court, in the exhibits relied

facie case in favour of the plaintiff‖. The above upon by the Sunni Central Waqf Board to show
order was confirmed by a possession from 1858 the

Division Bench of the High Court of Allahabad in disputed site has been referred to as ―Janam
appeal on 26 April 1955, Asthan Masjid‖ or ―Masjid

though the High Court made an observation that Janam Asthan‖ signifying that the site was always
taking on record the referred to as the

affidavits after the judgment had been reserved, Janmasthan or birth-place of Lord Ram;
was not correct;
(viii) The right of entry into the temple for
(iii) Despite the publication of public notices in purposes of ―darshan‖ or worship is a
three newspapers calling
right which flows from the nature of the institution
objections with respect to the Section 145 itself (Nar Hari Shastri v
proceedings, none of the Muslim
Shri Badrinath Temple Committee122). Worship
defendants filed any contrary statements; includes attendance at

(iv) These affidavits have corroborative value: the temple for the purpose of darshan of a deity or
when defendant nos 1 to 5 filed deities in the precincts

their written statements in Suit 1 on 21 February (Sastri Yagnapurushadji v Muldas Bhudardas

1950, despite having Vaishya123). If the

knowledge of the affidavits filed in the Section 145 general public have always made use of the temple
proceedings, they did for public worship and

not object to the stand taken by Muslims; devotion in the same way as they do in other
temples, it is a strong
(v) Before the High Court, the affidavits had been
brought on record in the circumstance in favour of the conclusive existence
of a public temple (Bala
present suit and were duly exhibited. They form
part of relevant historical Shankar Maha Shanker Bhattjee v Charity
Commissioner, Gujarat
facts and could not be rejected outright;
State124).
(vi) Defendant nos 1 to 5 filed an application
praying that Suit 1 be treated as a Mr Ranjit Kumar, learned Senior Counsel referred
to the order of the Magistrate
representative suit under Order I Rule 8, which was
opposed by the dated 30 July 1953, by which the file in the
proceedings under Section 145 was

138
consigned to the record in view of the temporary virtue of being in possession for more than 400
injunction granted on 3 March years, affirmed their right of

1951. The Magistrate noted that the case under adverse possession over the disputed property;
Section 145 had been pending
(iv) Suit 1 has been primarily filed against the State
‗unnecessarily‘ and dates were being fixed in the authorities as the main
hope that the civil suit will be
grievance was against the authorities preventing the
disposed of or the temporary injunction will be plaintiff from offering
vacated. However, the Magistrate
worship inside the disputed premises;
noted that the finding of the civil court was binding
on the criminal court and there (v) The suit was filed to enforce a personal right of
122 1952 SCR 849 123 (1966) 3 SCR 242 124 the plaintiff i.e. the right to
1995 Supp (1) SCC 485
worship inside the disputed structure and thus, the
PART L right gets automatically

240 extinguished on his death;

was no purpose in starting the proceedings (vi) The fourteen affidavits filed by the Muslim
separately under Section 145. Mr persons of Ayodhya in the

Ranjit Kumar drew this Court‘s attention to the proceedings under Section 145 proceedings are not
application dated 22 July 1954 admissible in

filed by Gopal Singh Visharad before the evidence under Section 3 of the Indian Evidence
Magistrate requesting him to preserve Act. The affidavits have

all files with respect to the proceedings under PART L

Section 145 and not to weed them
241
out till the finality of the decision of the civil court.
no relevance as the authors of the affidavits have
213. Dr Rajeev Dhavan, learned Senior Counsel not been cross
appearing for the Sunni
examined and since they are not parties to any of
Central Waqf Board, has raised the following the suits individually,
submissions in reply:
they cannot be relied upon. Justice Sudhir Agarwal
(i) The written statements filed by defendant nos 1 has found these
to 5 do not include the
affidavits to be unreliable;
Sunni Central Waqf Board;
(vii) There is no clear mention of whether the
(ii) The mosque was constructed by Babur through plaintiff had earlier carried out any
his Commander Mir Baqi
worship inside the disputed structure and he has not
and was dedicated as a valid waqf. Under the mentioned the exact
Muslims Waqf Act 1936, the
place of birth of Lord Ram below the central dome;
Chief Commissioner Waqf decided that the mosque and
was a Sunni Waqf;
(viii) The exhibits relied upon by the Sunni Central
(iii) The Muslims have been in possession of the Waqf Board clearly show that
mosque since 1528 and by

139
the Hindu parties had access to only the outer suit stood abated. It is necessary to advert to the
courtyard restricted to the pleadings in Suit 1 to determine

Ramchabutra and Sita Rasoi. All efforts of trespass whether the right asserted by the original plaintiff
in the inner courtyard was a private right or involved a

were thwarted and the authorities passed directions larger public right claimed in common with other
evicting those who worshippers. Paragraph 3 of the

tried to enter the inner courtyard. plaint in Suit 1 reads as follows:

214. None of the persons who are alleged to have ―…Defendant No.6 prevented the plaintiff from
filed affidavits in the going inside the place where the idol of Shri
Ramchandra Ji and others are placed and it was
proceedings under Section 145 were examined in learnt that after getting influence with the baseless
evidence during the course of and false perversity of the Defendants No.1 to 5
and their other fellows, Defendant No.7 to 9 have
the civil trial before the High Court. The credibility
deprived the Hindu public from their legitimate
of a statement made by a
right of performing worship and having darshan
person on affidavit can only be accepted if the and because of undue insistence of the Defendants
witness is produced in evidence. No.1 to 5 etc., Defendant No. 6 declares that Hindu
Public shall be deprived from their above rights in
However, in the present case, the Muslim residents the same manner in future also and because of the
who presented the affidavits above unjustifiable act, proprietary right of original
plaintiff which he had always used, is being
before the Magistrate in the proceedings under infringed and in the above circumstances, present
Section 145 were not cited or plaintiff has the complete apprehension and fear of
improper and unlawful interference in the
produced as witnesses. In the absence of any
Defendants in exercise of the above religious
opportunity to the opposite side to
rights.‖ (Emphasis supplied)
challenge the statements made in the affidavits, no
Defendant no 6 is the State of Uttar Pradesh
reliance can be placed upon
defendants nos 7 to 9 are the
the contents of the affidavits.
Deputy Commissioner, Additional City Magistrate
PART L and the Superintendent of

242 Police, Faizabad respectively. The pleadings

indicate that the right asserted was
215. The original plaintiff Gopal Singh Visharad
passed away during the not a private right, but a right in common with and
for the benefit of other Hindu
pendency of the suit and was substituted by his son,
Rajendra Singh Visharad devotees to pray at the disputed property. The right
claimed was that of the
pursuant to the court‘s order dated 22 February
1986. It was contended that the ―Hindu public‖ to worship at the disputed property
without undue interference. By
original plaintiff instituted the suit for enforcing his
private right to worship at the PART M

disputed property and that upon his death, such 243

right was extinguished, and the
an order dated 22 February 1986, the court
permitted Rajendra Singh Visharad,

140
the son of the original plaintiff, to be substituted as PART M
the first plaintiff in Suit 1.
244
Rajendra Singh Visharad is also a follower of the
‗Sanatan Dharm‘ and performed institution of the suit is the initiation of the
proceedings under Section 145 of the
worship at the disputed site. The right asserted on
behalf of the larger ―Hindu CrPC 1898 by the City Magistrate. The
proceedings are alleged to be without
public‖ does not stand extinguished upon the death
of the original plaintiff and lawful cause and under the ―wrong persuasion‖ of
the Muslim parties represented
can be pursued by his son who is also a worshipper.
by the sixth and eighth defendants. As a result, the
216. The remaining issues in contention in Suit 1 Nirmohis allege that they
are connected with the ones
were wrongfully deprived ―of their management
argued in Suit 5. The relief sought in Suit 5 will and charge of the said temple‖
have a direct impact on the
and that though they were awaiting the conclusion
plaintiff‘s right to pray as claimed in Suit 1. of the proceedings under
Accordingly, we will deal with the
Section 145, the proceedings have been unduly
contentions raised in Suit 1 at the time of prolonged with the connivance of
addressing the contentions in Suit 5.
the defendants.
M. Suit 3: Nirmohi Akhara
The Muslim parties have been impleaded because
M.1 Pleadings they are alleged to be

217. Nirmohi Akhara claims that the Janmasthan, interested in ensuring that the charge and
commonly known as management of the temple is not

Janmabhumi, which is the birth-place of Lord Ram handed over to Nirmohi Akhara. The cause of
―belongs and has always action for the suit is stated to have

belonged‖ to it and it has been ―managing it and arisen on 5 January 1950 when the receiver is
receiving offerings through the alleged to have illegally taken over

reigning Mahant and Sarbrahkar‖. Besides the management and charge of the temple from
receiver, the second to fifth Nirmohi Akhara. Following the

defendants are official respondents represented by incident which took place on 6 December 1992
the State of Uttar Pradesh (which the Nirmohis claim as the

and its officers. The plaint contains an averment demolition of the property of the temple by ―some
that the temple has ―ever since miscreants‖), the plaint was

been in the possession of‖ Nirmohi Akhara and amended. The amended plaint refers to the trust
only Hindus have been allowed to deed executed by Nirmohi

enter and worship in it, at least since 1934. In other Akhara on 19 March 1949 reducing its existence
words, Nirmohi Akhara into writing. The Akhara claims

denies the status of the disputed structure as a to own several temples and properties, which vest
mosque. The basis for the in it. The relief that is claimed

141
in the suit is for the removal of the receiver ―from charge and the right to manage the temple as a
the management and charge of result of the proceedings.

the said temple of Janmabhoomi‖ and for delivering Though in the plaint it appears that the claim in the
it to the plaintiff. suit was in respect of the

The averments contained in the plaint as well as inner courtyard, in the replication filed by Nirmohi
the reliefs which have been Akhara to the written statement

claimed by Nirmohi Akhara indicate that the claim of the tenth defendant, it has been stated that the
is founded on an entitlement, outer enclosure was in its

which is asserted to be the charge and management possession and was owned and managed by it until
of the temple. In that 1982 when it came into

PART M possession of the receiver in a suit inter se being

Regular Suit 39 of 1982.
245
219. The averments contained in the pleadings of
capacity, the Nirmohis state that they have been in Nirmohi Akhara in Suit 3 must
possession of the
be read together with the nature of their defence to
Janmabhumi temple and have received offerings Suit 5. Suit 5 has been
made by devotees. The plaint
instituted on behalf of the deity of Lord Ram and
contains a reference to the temples that are owned the Janmasthan by a next friend.
and managed by Nirmohi
PART M
Akhara. There is a reference to the possession of
the Janmasthan temple by the 246

Akhara. Ultimately, the claim for relief is a Nirmohi Akhara in its written statement in Suit 5
direction simpliciter to the receiver to opposes the maintainability of

handover the management and charge of the temple the Suit on the ground that the Janmasthan is not a
to it. juridical person and the next

218. In the written statement, which was filed by friend had no right or authority to institute a suit on
the Muslim parties (defendant behalf of the deity and the

nos 6 to 8), the plea taken was that in the Suit of Janmasthan. Nirmohi Akhara has distanced itself
1885 which was instituted by from Suit 5, claiming that the

Mahant Raghubar Das, the relief was confined to idol of Lord Ram is not known as ―Ram Lala
the Chabutra outside the Virajaman‖ and that the Janmasthan

mosque and no objection was taken in respect of is simply a place and not a juridical person.
the mosque which was
Nirmohi Akhara has claimed in its written
depicted in the site plan. submissions that it is the ―Shebait of

In its replication, Nirmohi Akhara expressed Bhagwan Shri Ram installed in the temple in
ignorance about the suit filed by dispute‖ and that the Akhara ―alone‖

Mahant Raghubar Das. The Akhara claims that it has the right to control, supervise and repair or
has been wrongfully deprived of even to reconstruct the temple, if

142
necessary. It claims that in its capacity as the (v) The claim of Nirmohi Akhara is in the capacity
shebait and manager, ―the temple of a shebait and as a

belongs to Nirmohi Akhara‖ and the plaintiffs in manager of the temple;

Suit 5 ―have no real title to sue‖. It
(vi) Nirmohi Akhara opposes the maintainability of
has been urged that Suit 5 encroaches upon the Suit 5 on the ground that as
rights of Nirmohi Akhara to
a shebait, it alone is entitled to represent the deity
manage the temple. Nirmohi Akhara urges that the of Lord Ram;
entire premises belong to it
(vii) The entitlement of Nirmohi Akhara to sue is to
and the plaintiffs in Suit 5 have no right of the exclusion of any third
declaration against the right and title of
party and hence, Suit 5 which has been instituted
Nirmohi Akhara. In the additional written through a next friend, is
statement, it has been claimed that the
asserted as not being maintainable; and
outer part was in the management and charge of
Nirmohi Akhara till it was (viii) The status of Ram Janmasthan as a juristic
entity is denied and hence it
attached when the receiver was appointed in
Regular Suit 239 of 1982. would (according to Nirmohi Akhara) not be
entitled to pursue the claim in
M.2 Conflict between Suit 3 and Suit 5
Suit 5.
220. The following position emerges from an
analysis of the pleadings of Both on the basis of the pleadings and the
submissions which have been urged
Nirmohi Akhara in Suit 3 and as a defendant in
Suit 5: during the course of the hearing, a clear conflict of
claims and entitlements has
(i) The claim of Nirmohi Akhara is for the
management and charge of Ram emerged between the plaintiffs in Suit 3 and Suit 5.

Janmabhumi temple; 221. Mr K Parasaran, learned Senior Counsel

appearing on behalf of the
PART M
plaintiffs in Suit 5 has submitted that Suit 3 is
247 barred by limitation, a submission

(ii) The relief sought is for handing over of the which has also been urged on behalf of the plaintiff
management and charge of the in Suit 4 by Dr Dhavan. On

temple by the receiver to it; the other hand, it must be noted that Dr Dhavan
submitted that Nirmohi Akhara is
(iii) In the context of (i) and (ii) above, Nirmohi
Akhara has claimed that it was PART M

in possession of the temple; 248

(iv) The deprivation of the right claimed arose as a matter of fact and evidence entitled to claim
when the receiver took over shebaiti rights in respect of the

management and charge on 5 January 1950; idols of Lord Ram at the Janmabhumi. He however
maintains that Suit 3 is barred

143
by limitation and hence, no relief should or could Plaintiff No. 1 and 2 through Plaintiff No. 3 as their
have been granted in their suit. next friend under Order 32 Rule 1 CPC

Hence, from the arguments before this Court it has PART M

emerged that:
249
(i) The plaintiffs in Suit 4 and Suit 5 have
challenged Suit 3 on the ground of provided the other Hindu Parties i.e. Plaintiff of
OOS No. 1 of 1989 and Plaintiff No. 3 of OOS No.
the bar of limitation; 5 of 1989 do not press or question the Shebaiti
right of Nirmohi Akhara in relation to the deities in
(ii) The plaintiffs in Suit 5 oppose the claim of the question and the maintainability of Suit OOS No. 3
plaintiff in Suit 3 to be the of 1989 by the Plaintiff Nirmohi Akhara. 2. It is
submitted that the plaintiff – Nirmohi Akhara can
shebait of the idols of Lord Ram; and
independently maintain the suit even in the absence
(iii) The plaintiff in Suit 4 accepts the entitlement of deities as parties in Suit OOS No. 3 of 1989 as
of the plaintiff in Suit 3 as a the identity of the deities is merged in the identity
of the Shebait – Nirmohi Akhara. A suit filed by
shebait, subject to the caveat that the suit itself is the Nirmohi Akhara ―as a Shebait‖ is a suit filed
barred by limitation. by and on behalf of the deities. 3. It is stated that,
the reliefs sought by the Nirmohi Akhara ―For
222. A query was addressed by this Court to Mr S restoration of charge and management from the
K Jain, learned Senior receiver‖ cannot be categorized as reliefs ―against‖
the interest of the deities for which it can be said
Counsel appearing for the plaintiff in Suit 3 as to
that they should be represented as a defendant
whether it is open to a shebait to
through a disinterested next friend.‖
assert title or ownership in a manner hostile to the
In other words, the stand of Nirmohi Akhara is that
claim of the deity. In response,
it alone is entitled to represent
Mr Jain submitted that the claim of Nirmohi
the interest of the deity in its character as a shebait
Akhara is for management and
which it has done in Suit 3.
charge of the temple in its character as a shebait
Moreover, absent any allegation of
and no more. Hence, though it
mismanagement on the part of the shebait, a
has used the phrases ‗own‘ and ‗belong‘, they are
suit cannot be instituted in the name of the deity by
not intended to assert a claim
a next friend, as has been
of full ownership, over and above or any higher
done in Suit 5. This aspect will be explored in
than as a shebait. This aspect of
greater detail when the
Mr Jain‘s submission will be examined shortly in
maintainability of Suit 5 is analysed. At this stage,
the context of the issue of
we must also notice the
limitation. However, it must be also noted at this
implications of Dr Dhavan having accepted the
stage that, during the course of
shebaiti claim of Nirmohi Akhara.
the hearing, Mr Jain tendered a statement on the
The concession cannot exist in a vacuum. The
stand of Nirmohi Akhara on the
assertion of the claim can only
maintainability of Suit 5 in the following terms:
take place in a context which acknowledges the
―1. The Nirmohi Akhara would not press the issue existence of a deity whom the
of maintainability of Suit No. OOS No. 5 of 1989
which has been filed on behalf of the deities

144
shebait seeks to represent. Hence, a specific query Suit 3. Hence, issue 1 was answered in the
was posed to Dr Dhavan as negative.

to whether, quite independent of the issue of  Justice D V Sharma – There is no evidence to

limitation, the concession which has establish that there

been made on his behalf would necessarily result in was any temple belonging to Nirmohi Akhara
a legal consequence in inside the structure in

regard to the position of the deity‘s presence at which idols have been installed from time
Ram Janmasthan. To this, it must immemorial.

be noted that the response of Dr Dhavan was that 2 Does the property in Suit belong to the plaintiff
the presence of the deity at in Suit 3?

Ramchabutra, in his submission, envisaged only an  Justice Sudhir Agarwal - The property which
easementary right to worship forms the subject

PART M matter of the claim in Suit 3 consists of the

premises in the inner
250
courtyard. There is no documentary evidence to
for the Hindu devotees to pray and, for that establish title nor is
purpose, to gain access to the
there any evidence to establish adverse possession.
courtyard.
 Justice D V Sharma held against the plaintiff.
M.3 Issues and findings of the High Court
PART M
223. Before proceeding with our analysis any
further, it is necessary at this 251

stage to enumerate the issues which were framed in 3 Have plaintiffs acquired title by adverse
Suit 3 and the findings of the possession for over 12

High Court. years?

1 Is there a temple of Janmabhumi with idols  Justice S U Khan – For the period before 1855,
installed therein as there is no need to

alleged in para 3 of the plaint in Suit 3? decide the question of adverse possession.

 Justice S U Khan - The idols were held to have  Justice Sudhir Agarwal held against the
been placed in the plaintiff.

pulpit inside the constructed portion of the mosque  Justice D V Sharma held against the plaintiff.
for the first time
4 Are plaintiffs entitled to get management and
during the night of 22/23 December 1949. charge of the said

 Justice Sudhir Agarwal – The premises in temple?

dispute cannot be
 Justice Sudhir Agarwal held against the
treated to be a temple in the manner as claimed by plaintiff. The idols were
the plaintiffs in
placed under the central dome on the night
intervening 22/23

145
December 1949. The plaintiff having disputed this 6 Was the alleged mosque dedicated by Emperor
cannot be treated Babur for worship by

as shebaits of the idols placed under the central Muslims in general and made a public waqf
dome since there is property?

no evidence of their taking care of the deity in the  Justice S U Khan – It cannot be held that the
inner courtyard mosque was not a

under the central dome. valid mosque, having been constructed over the
land of someone
 Justice D V Sharma held against the plaintiff.
else.
5 Is the property in suit a mosque made by
Emperor Babur known as  Justice Sudhir Agarwal – In the absence of
evidence direct,
Babri Masjid?
circumstantial or otherwise issue no 6 has not been
 Justice S U Khan – The constructed portion of proved and is
the disputed
answered in the negative.
premises was put up as a mosque by or under the
orders of Babur.  Justice D V Sharma – Decided together with
issue no 1.
It was not material if it was built by Mir Baqi or
someone else. 7(a) Has there been a notification under Muslim
Waqf Act (Act no 13 of
However, it is not proved by direct evidence that
the premises in 1936) declaring this property in suit as a Sunni
Waqf?
dispute including the constructed portion belonged
to Babur or to the  Justice Sudhir Agarwal – Answered in the
negative.
PART M
 Justice D V Sharma – As per the conclusions
252 drawn in Suit 4.

person who constructed the mosque. On the basis 7(b) Is the said notification final and binding? Its
of the effect.

inscriptions alone it cannot be held that the  Justice Sudhir Agarwal – Answered In the
building was constructed negative.

by or under the orders of Babur or that it was  Justice D V Sharma – As per the conclusions
constructed in 1528. drawn in Suit 4.

 Justice Sudhir Agarwal – The defendants failed PART M

to prove that the
253
property in dispute was constructed by Babur in
1528. 8 Have the rights of the plaintiffs been
extinguished for want of
 Justice D V Sharma – The property in dispute
has been possession for over 12 years prior to the suit?

constructed by Babur.  Justice S U Khan – Parties are enjoying joint

possession and

146
hence, it was not necessary to decide the issue of  Justice D V Sharma – answered in favour of the
adverse plaintiffs.

possession. 10(b) Is the above plea available to contesting

defendants?
 Justice Sudhir Agarwal – The suit was instituted
in 1959 and it  Justice Sudhir Agarwal – answered in favour of
the plaintiffs.
cannot be said that in the preceding 12 years, the
plaintiffs never  Justice D V Sharma – answered in favour of the
plaintiffs.
had possession of the inner courtyard. Neither of
the plaintiffs have 11 Is the suit bad for non-joinder of necessary
defendants?
discharged the burden of establishing that they
were owners of the  Justice S U Khan – though the issue has not
been dealt with
property in dispute nor have the defendants
established that the specifically, he has agreed with the findings of
Justice Sudhir
plaintiffs remain dispossessed for over 12 years and
that the Agarwal which are not inconsistent with his own
findings.
defendants have fulfilled the requirements of
adverse possession.  Justice Sudhir Agarwal – answered in favour of
plaintiffs as not
The issue is accordingly answered in the negative.
pressed.
 Justice D V Sharma – Answered against the
plaintiff and as per the  Justice D V Sharma – decided in terms of the
findings on issue 21
conclusions drawn in Suit 4.
in Suit 4.
9 Is the suit within time?
12 Are defendants entitled to special costs u/s 35
 Justice S U Khan – The suit was within CPC?
limitation.
 Justice Sudhir Agarwal – answered in favour of
 Justice Sudhir Agarwal – The suit is barred by the plaintiffs as
limitation under
not pressed.
Article 120 of the Limitation Act. Articles 47, 142
and 144 of the  Justice D V Sharma – answered in the negative.

Limitation Act were inapplicable. 13 To what relief, if any, is the plaintiff entitled?

 Justice D V Sharma – The suit is barred by  Justice S U Khan – Each of the three parties
limitation. (Muslims, Hindus and

10(a) Is the suit bad for want of notice u/s 80C? Nirmohi Akhara) is entitled to a declaration of joint
title and
 Justice Sudhir Agarwal – answered in favour of
the plaintiffs. possession to the extent of one-third share each and
a preliminary
PART M
decree is passed to that effect.
254

147
 Justice Sudhir Agarwal – The plaintiff in Suit 3  Justice D V Sharma – The issue is decided in
is not entitled to favour of the

any relief. Despite this, it has been held that plaintiffs.

possession of the area
15 Is the suit property valued and court-fee paid
PART M sufficient?

255  Justice Sudhir Agarwal – answered in favour of

the plaintiffs as
governed by Ramchabutra, Sita Rasoi and Bhandar
in the outer not pressed.

courtyard is declared to be the share of Nirmohi PART M

Akhara in the
256
absence of any claim for better title. Moreover, the
open area in the 16 Is the suit bad for want of notice u/s 83 of U.P.
Act 13 of 1936?
outer courtyard shall be shared by Nirmohi Akhara
with the plaintiffs  Justice Sudhir Agarwal – – answered in the
negative.
in Suit 5.
17 Whether Nirmohi Akhara, the Plaintiff, is a
 Justice D V Sharma – the suit is dismissed and Panchayati Math of
Nirmohi Akhara is
Ramanand sect of Bairagis and as such, is a
not entitled to any relief. religious denomination

14 Is the suit not maintainable as framed? following its religious faith and per suit according
to its own
 Justice S U Khan – Issue not decided
specifically. Miscellaneous customs? (added by Hon‘ble High Court‘s order
dated 23 February
findings – he has agreed with Justice Sudhir
Agarwal, subject to 1996)

anything contrary in his (Justice S U Khan‘s)  Justice Sudhir Agarwal – answered in favour of
judgment. the plaintiffs.

 Justice Sudhir Agarwal – suit held not  Justice D V Sharma – answered held in favour
maintainable. Upon the of the plaintiffs.

attachment of the property under Section 145 of the M.4 Limitation in Suit 3
CrPC 1898, the
224. Suit 3 was instituted on 17 December 1959.
plaintiffs could have filed an objection before the The Limitation Act of 1908
Magistrate. The
was in force on the date of the institution of the
plaintiff did not file any objections or seek any Suit. Section 3 of the Limitation
declaration of title, in
Act provides that subject to the provisions
the absence of which the civil judge could not have contained in Sections 4 to 25
directed the
(inclusive) every suit instituted, appeal preferred,
handing over of charge by the receiver to the and application made, after the
plaintiff.

148
period of limitation prescribed by the first schedule possession. [Twelve years] The date of the
shall be dismissed, although dispossession or discontinuance.

limitation has not been set up as a defence. Section Relevant dates

31(b)125 of the Limitation Act
226. Before we enter upon the
1963 saves suits, appeals and applications which issue of limitation, it is necessary to recapitulate
were pending on the date of its
the relevant dates bearing on the issue. They are as
commencement from the application of the follows:
legislation. As a result, the issue of
PART M
limitation for the purpose of Suit 3 is governed by
the Limitation Act 1908. 258

125 Section 31. (i) On 29 December 1949, a preliminary order was

Provisions as to barred or pending suits, etc... (b) passed under Section 145
affect any suit, appeal or application instituted,
of the CrPC 1898 by the Additional City
preferred or made before, and pending at, such
Magistrate and while ordering
commencement.
attachment, a receiver was appointed;
PART M
(ii) On 5 January 1950, the receiver took charge
257
and made an inventory of the
By a split 2:1 verdict, the High Court held that Suit
attached properties;
3 was barred by limitation, the
(iii) On 16 January 1950, Suit 1 was instituted by
dissenting judge on this issue being Justice S U
Gopal Singh Visharad
Khan.
seeking a declaration that he was entitled to
225. Three articles of the schedule to the Limitation
worship and offer prayers at
Act 1908 have been
the main Janmabhumi near the idols. On the same
pressed in aid and the issue is which of those
date, an ad interim
articles would stand attracted. The
injunction was granted in the Suit;
relevant articles are Articles 47, 120 and 142.
These articles are extracted in the (iv) On 19 January 1950, the ad interim injunction
in Suit 1 was modified in the
table below:
following terms:
Description of suit Period of limitation Time from
which period begins to run 47. By any person ―The opposite parties are hereby restrained by
bound by an order respecting the possession of means of temporary injunction to refrain from
immoveable property made under the Code of removing the idols in question from the site in
Criminal Procedure, 1898, or the Mamlatdars dispute and from interfering with puja etc. as at
Courts Act, 1906, or by any one claiming under present carried on. The order dated 16.01.1950
such person, to recover the property comprised in stands modified accordingly.‖ (v) On
such order. [Three years] The date of the final 3 March 1951, the order of temporary injunction
order in the case. 120. Suit for which no period of dated 16 January 1950
limitation is provided elsewhere in this schedule.
[Six years] When the right to sue accrues. 142. For as modified on 19 January 1950 was confirmed;
possession of immoveable property when the
plaintiff, while in possession of the property, has (vi) On 30 July 1953, the Additional City
been dispossessed or has discontinued the Magistrate passed the following order

149
in the proceedings under Section 145: 145 was on 30 July 1953 (except for an order in
1970 for replacing the
―The finding of the Civil Court will be binding on
the Criminal Court. It is no use starting proceedings receiver on the death of the incumbent). This order
in this case under Section 145 Cr.P.C. and and the subsequent
recording evidence specially when a temporary
injunction stands, as it cannot be said that what order of the Magistrate dated 31 July 1954
may be the finding of this Court after recording the indicated that the proceedings
evidence of parties. From the administrative point
under Section 145 had not been dropped or
of view the property is already under attachment
finalised. In the event that the
and no breach of peace can occur. I, therefore,
order that the file under Section 145 Cr.P.C. be Magistrate had passed some final order either after
consigned to records as it is and will be taken out the dismissal of the
for
appeal against the order granting an interim
PART M injunction or on some other
259 date, it would have provided a fresh starting point
for the purpose of
proceedings further when the temporary injunction
is vacated.‖ limitation to file a suit for a declaration;
(vii) On 31 July 1954, the Additional City PART M
Magistrate issued the following
260
directions:
(ii) Even if it were to be held that Suit 3 is barred
―This file cannot be weeded as it is not a disposed by limitation, the rights and
of file. How do you report that it will be weeded
of?‖ entitlement of the contesting parties would have to
be decided in Suit 1
(viii) On 26 April 1955, an appeal against the
order dated 3 March 1951 under which was instituted within the period of
limitation. A decision on the title of
Order XLIII, Rule 1(r) of the Code of Civil
Procedure 1908 was dismissed Nirmohi Akhara in Suit 1 would be sufficient for
the purpose of Section
by the High Court; and
146(1) of the CrPC;
(ix) On 17 December 1959, Suit 3 was instituted by
Nirmohi Akhara for a (iii) The demolition of the constructed portion of
the premises on 6 December
decree against the receiver for handing over charge
and management of 1992, acquisition of the premises and the adjoining
area by the Union
the temple.
Government and the decision of the Supreme Court
Reasons of the High Court in Dr M Ismail
227. Justice S U Khan adduced the following Faruqui v Union of India126, gave a fresh starting
reasons for holding that the suit point for limitation. Even
was not barred by limitation: if the remedy of all parties (except the plaintiff in
Suit 1) was barred by
(i) First, the last order which was passed in the
proceedings under Section

150
limitation, its rights still subsisted. The demolition their pleadings have neither sought a declaration of
of the structure gave a title nor have they

fresh cause of action for a declaratory suit under claimed to have been dispossessed illegally by
Section 42 of the Specific anyone. The claim is that

Relief Act 1877; the City Magistrate had illegally taken over
management and charge of the
(iv) The receiver appointed under Section 145 of
the Magistrate cannot hold temple. The City Magistrate passed a statutory
order under Section 145
the property indefinitely after attachment. Hence, a
liberal view would have and pursuant to the order of attachment the
possession of the inner
to be taken in the absence of which uncertainty
would be created. Where courtyard was given to the receiver. An order of
attachment under Section
due to the attachment, a suit for possession could
not be filed, Section 28 145 could not constitute a deprivation of the right
to possession of the real
would not extinguish the rights of the parties.
Moreover, the principle of a owner but the receiver is said to hold the property
on behalf of the true
continuing wrong under Section 23 of the
Limitation Act 1908 was owner. There being no dispossession of Nirmohi
Akhara, Article 142 had
applicable and Nirmohi Akhara was being
constantly denied their right to no application; and

charge and management; and (iii) Article 47 is also not applicable. Hence, the
issue of limitation was required
126 (1994) 6 SCC 360
to be adjudicated upon with reference to Article
PART M 120. The suit was

261 instituted beyond the period of six years specified

in Article 120 and hence
(v) In any event, even if the suit was barred by
limitation, the court was bound was barred by limitation.

to pronounce on all issues as required by Order PART M

XIV Rule 2(1) of the Code
262
of Civil Procedure 1908.
Justice D V Sharma held that for the purposes of
Justice Sudhir Agarwal adduced the following determining limitation in Suit 3,
reasons for holding that Suit 3 was
Article 120 was applicable. Suit 3 was filed on 17
barred by limitation: December 1959. The suit not

(i) The cause of action for the Suit arose on 5 having been filed within six years of the accrual of
January 1950 upon the receiver the cause of action, it was

taking charge of the inner courtyard; barred by limitation.

(ii) Suit 3 was confined to the premises of the inner Submissions of Nirmohi Akhara
courtyard. The plaintiffs in

151
228. Mr S K Jain, learned Senior Counsel for the bound by an order respecting the possession of
plaintiffs in Suit 3 made the immovable

following submissions with respect to limitation: property made under the CrPC. The third column
under Article 47
I No final order has been passed in the proceedings
under Section 145. specifies the time from which limitation begins to
run and mentions
Hence, limitation under Article 47 of the
Limitation Act 1908 has not the commencement of limitation from the date of
the passing of the
commenced:
final order. A suit that is categorised in the first
(i) The cause of action in the Suit arose on 5 column would be
January 1950 when the
governed only by that, unaffected by the use of the
receiver took charge of the inner courtyard; words in the

(ii) The Magistrate‘s order under Section 145 dated third column. The Limitation Act bars suits filed
29 December 1949 ―after‖ the limitation

was a preliminary order and provided the cause of period but does not prevent suits from being
action. However, instituted ―before‖ the

the limitation for such a suit would commence only period has commenced.
upon passing of
II Denial of Nirmohi Akhara‘s ‗absolute‘ shebaiti
a final order in the proceedings under Section 145. rights of management
In the present
and charge is a continuing wrong. By virtue of
case, as noted by the Magistrate in the order dated Section 23 of the
31 July 1954,
Limitation Act 1908, a fresh cause of action arose
the proceedings under Section 145 had not been every day:
disposed of and
(i) The limitation for Suit 3 is governed by Article
therefore, the final order had still not been passed. 142 as the plaintiffs
The
were dispossessed of their property. Article 142 is
proceedings under Section 145 continue to remain applicable when
pending; and
the suit is filed for possession of immovable
(iii) The suit is governed by Article 47 of the property when the
Limitation Act 1908. The
plaintiff, while in possession of the property, has
limitation of three years for a suit under Article 47 been dispossessed
commences from
or has discontinued the possession. The plaintiffs in
the date of the final order in the case. Under Article Suit 3 had the
47, the first
management and charge over the idols and the
PART M temple as they were

263 performing the puja, taking care of the pilgrims and

performing other
column contains the description of the suit and
refers to a person

152
duties. The rights to do puja, et al. i.e. the shebaiti (iii) The cause of action arose on 5 January 1949
rights are by which Nirmohi

attached to the possession of the immovable Akhara was denied its absolute right as a shebait
property. The plaintiff and it continues to

relied on the following precedents to illustrate its be denied those rights. The obstruction of the
proprietary interest plaintiff‘s right to

in the property: manage the bhog and prayers independently is a

continuing wrong
PART M
under Section 23 of the Limitation Act and every
264 obstruction

(a) Angurbala Mullick v Debabrata Mullick127 provides a fresh cause of action. Reliance was
where it was held placed upon the

that a shebait enjoys some sort of right or interest judgement of the Privy Council in Sir Seth Hukum
in the Chand v

endowed property which partially at least has the 127 1951 SCR 1125 128
character of 1954 SCR 1005

a proprietary right; and PART M

(b) Commissioner, Hindu Religious Endowments v 265

Sri
Maharaj Bahadur Singh129 where the obstruction
Lakshmindra Thirtha Swamiar of Sri Shirur of prayer and
Mutt128 where
worship has been held to be a continuing wrong.
it was held that in shebaitship both the elements of
office and III Article 120 of the Limitation Act 1908 is a
residuary provision and is
property, of duties and personal interest are
blended together. applicable when no other provision, including
Articles 47 and 142
The office of the Mahant has the character of a
proprietary applies. The doctrine of merger applies, and the
preliminary order
right which, though anomalous to some extent, is
still a dated 29 December 1949 passed under Section 145
merges with the
genuine legal right.
order dated 26 April 1955 by which the ad-interim
(ii) A suit for restoration of shebaiti rights would be injunction in Suit 1
for recovery of
was upheld by the High Court:
possession and restoration of management. Article
142 would be (i) The submission is on the assumption (without
conceding) that
attracted which provides a limitation of 12 years
from the date of Articles 47 and 142 are not applicable and Article
120 applies;
dispossession;

153
(ii) By virtue of the doctrine of merger, the order of decree passed in appeal.
the Additional City
IV In a suit for restoration of possession from a
Magistrate dated 29 December 1949 in the receiver, the question of
proceedings under
limitation can never arise and such suits can never
Section 145 of the CrPC merged with the order of be barred by
the High Court
limitation.
dated 26 April 1955 in the appeal against the
interim order to (i) So long as the property of a person from whom
possession was
maintain status quo in Suit 1. Therefore, the
plaintiff‘s right to sue taken continues to be under a receiver, the question
of limitation can
accrued on 26 April 1955. Suit 3 which was filed
on 17 December never arise; and

1959 was within the period of limitation of six (ii) The property cannot remain custodia legis ad-
years. Reliance was infinitum and it is

placed upon the decisions of this Court in: incumbent for the court to adjudicate upon the
issue of title and the
(a) Chandi Prasad v Jagdish Prasad130, where it
was held that suit cannot be dismissed as barred by limitation.

the doctrine of merger postulates that there cannot V In determining the entitlement to mesne profits,
be more the question of title

than one operative decree governing the same will have to be adjudicated upon and possession
subject-matter will have to be

at a given point of time. When the appellate court delivered by the receiver to the true owner:
passes a
As the property is under the control of the receiver,
decree, the decree of the trial court merges with the a suit for mesne profits
decree of 129 (1933) 38
for income derived by the receiver can be filed by
LW 306 (PC) 130 (2004) 8 SCC 724
the true owner and in
PART M
such a suit, any benefit which accrues would give
266 rise to a continuing

the appellate court, irrespective of whether the cause of action.

appellate court
131 (1989) 4 SCC 582
affirms, modifies or reverses the decree passed by
PART M
the trial
267
court; and
VI It is the plaintiff‘s claim that Nirmohi Akhara is
(b) S S Rathore v State of Madhya Pradesh131,
also the shebait of the
where it was
janmasthan and the idols. For the same reason that
held that a decree of a court of first instance merges
Suit 5 of 1989
in the

154
was held to be within limitation i.e. the deity was a whether the action of the civil court is wrong.
perpetual minor, Questions relating to

the suit of the plaintiff cannot be barred by title and possession are exclusively matters for civil
limitation. courts and the

229. Mr K Parasaran, learned Senior Counsel for PART M

the plaintiffs in Suit 5 refuted
268
the submissions made by Mr S K Jain and made the
following submissions with Magistrate‘s order under Section 145 cannot oust
the jurisdiction of
respect to limitation and the maintainability of Suit
3: the civil court;

I The Magistrate‘s order under Section 145 is an (ii) The proceedings under Section 145 are distinct
exercise of police and there exists no

powers for securing peace and does not determine bar for parties to file a civil suit for title or
title or possession after the order

possession over the property. Since such an order has been passed by the Magistrate. The jurisdiction
does not purport of the civil court

to give possession to any party, the question of is not curtailed by the order of the Magistrate under
Nirmohi Akahara Section 145 and

being dispossessed on account of an order in civil proceedings can be pursued independently.

proceedings under Reliance was

Section 145 proceedings does not arise. placed upon the decisions of this Court in the
following cases:
(i) An order under Section 145 is an exercise of
police powers for (i) Bhinka v Charan Singh132, where it was held
that under
securing peace. It is only for preventing breach of
peace and does Section 145(1), the Magistrate‘s jurisdiction is
confined only to
not determine the rights of parties with respect to
title over property. decide whether, any and if so, which of the parties
was on the
Section 145 proceedings simply freeze or protect
the rights of the date of the preliminary order in possession of the
land in
rightful owner. An order of the Magistrate in
exercise of the dispute. The order only declares the actual
possession of a
executive function can never be a wrongful act or
cause injury. The party on a specified date and does not purport to
give
order of a civil court cannot be considered as a
‗wrong‘ giving rise to possession or authorise any party to take
possession;
a cause of action. Only a judicial authority has the
power to decide (ii) Jhummamal alias Devandas v State of Madhya

155
Pradesh133, where it was held that an order made of the proceedings under Section 145, Nirmohi
under Akhara could

Section 145 deals only with the factum of independently have filed a suit for title and
possession of the possession.

party as on a particular day. It confers no title to II Section 3 of the Limitation Act 1908 provides
remain in that every suit instituted

possession of the disputed property. The after the period of limitation shall be dismissed.
unsuccessful party The Supreme Court

therefore must get relief only in the civil court in a can dispose of appeals only on the ground of
properly limitation. Unlike the

constituted suit. A party may file a suit for Trial Court that has to decide on all issues, the
declaration and Supreme Court is not

prove a better right to possession. The civil court bound to do so once it comes to the conclusion that
has a suit is barred

132 1959 Supp (2) SCR by limitation.

798 133 (1988) 4 SCC 452
(i) Reliance was placed upon the decision of this
PART M Court in Yeswant

269 Deorao Deshmukh v Walchand Ramchand

Kothari135, where it
jurisdiction to give a finding different from that
which the was observed that the rules of equity have no
application where
Magistrate has reached in the proceedings under
Section there are definitive statutory provisions specifying
the grounds on
145; and
the basis of which alone stoppage or suspension of
(iii) Deokuer v Sheoprasad Singh134, where it was the running of 134
held that in a (1965) 3 SCR 655 135 (1950) SCR 852

suit for declaration of title to property filed when PART M

the property
270
is attached under Section 145, it is not necessary to
ask for time can arise. While the courts necessarily are
―astute in
further relief of delivery of possession.
checkmating or fighting fraud‖, it should be equally
(iii) Mr S K Jain‘s submission in Suit 3 stating that borne in mind
the proceedings under
that statutes of limitation are statutes of repose.
Section 145 have not attained finality and
therefore, the limitation III The High Court‘s decision has to be set aside.
The decree is contrary
under Article 47 cannot begin to run cannot be
accepted. Irrespective to the law of pleadings. No prayer for a partition of
land was sought

156
by Nirmohi Akhara. The High Court‘s order has the following submissions with respect to
not been passed in limitation of Suit 3:

pursuance of the ends of justice but is an end of I The relief which Nirmohi Akhara has sought in
justice. Suit 3 is for

IV Section 28 of the Limitation Act 1908 management and charge. However in its plaint, it
extinguishes the substantive has claimed that

rights of a person. Accordingly, if the party fails on Janmasthan ‗belongs‘ and ‗has always belonged to
the issue of it‘ and the use of

limitation, then it also fails on all other substantive these terms in a loose sense may in a given context
issues and be inferred as

therefore, this Court cannot give any relief to ‗possession‘, ‗ownership‘ and ‗implied title‘.
Nirmohi Akhara in Suit
(i) The relief sought by Nirmohi Akhara was only
3. with respect to

V Article 120 alone governs the suit filed by management and charge of the idols of Lord Ram.
Nirmohi Akhara. Articles The case of

142 and 144 of the Limitation Act are not Nirmohi Akhara is based on the deprivation of
applicable. Once limitation shebaiti rights by an

starts to run, it cannot be stopped. order under Section 145 of the CrPC 1898. The
claim is against the
(i) Reliance was placed upon the decision of the
Privy Council in Raja State for possession of usufruct and to render
services to the deity.
Rajgan Maharaja Jagatjit Singh v Raja Partab
Bahadur Singh136, Words such as ―belong‖ or ―belonging‖ have a
flexible meaning.
where it was held with regard to the statutory
period of limitation, Reliance was placed upon the decisions of this
Court in:
that Article 47 does not apply, as there has been no
order for (a) Late Nawab Sir Mir Osman Ali Khan v
Commissioner of
possession by the Magistrate under Section 145. In
a suit for Wealth Tax, Hyderabad137 in relation to the
discussion on
declaration of title, Articles 142 and 144 do not
apply and the suit is the meaning of ‗belonging to‘; and

governed by Article 120. (b) Raja Mohammad Amir Ahmad Khan v

Municipal Board
136 (1942) 2 Mad LJ
384 Sitapur138 in relation to the discussion on making
unequivocal
PART M
assertions in the plaint and reading the plaint in its
271 entirety to

230. Dr Rajeev Dhavan, learned Senior Counsel for decipher the true meaning.
the plaintiff in Suit 4 made

157
(ii) Nirmohi Akhara had claimed in paragraph 2 of ownership or title devolves upon the shebait. The
its plaint that the shebait is not the

Jamnasthan belongs and has always belonged to it. owner of the property of the idol.
Further, it has 137 1986
Supp SCC 700 138 AIR 1965 SC 1923 III Nirmohi Akhara has used the proceedings under
Section 145 to urge
PART M
that the action of the government in denying them
272 absolute shebait

been claimed in paragraph 4 of the plaint that the rights is a continuing wrong:
temple has been
PART M
in the possession of the plaintiff. However, in the
written 273

submissions, the plaintiff has adverted to a claim of (i) Section 145 proceedings are not for determining
ownership and claims for title or

possession. ownership. Nothing prevented Nirmohi Akhara

from filing a
(iii) Use of the terms ‗belongs‘ or ‗belonging to‘
may in a given context declaratory suit for possession and title; and

be inferred as ‗possession‘, ‗ownership‘ and (ii) The specific date pleaded of when the cause of
‗implied title‘. The term action arose was 5

‗belongs‘ or ‗belonging to‘ is not a term of art and January 1950. Where the law has interfered to take
does not have a away

definitive meaning. Its interpretation can be open. possession under the order of the Magistrate, the
period of six years
II Nirmohi Akhara is using the term ‗belongs‘ to
claim title and obviate started on that date and there was no scope for
invoking a
the bar of limitation. The term ‗belongs‘ should be
given its ordinary continuing wrong because the action was complete,
and remedies
meaning. If Nirmohi Akhara claims title for itself
then it is at odds with lay elsewhere.

the suit of the deity. It can only claim ancillary Having adverted to the submissions which were
rights: urged by the learned Senior

(i) Nirmohi Akhara merely claims to serve the idol Counsel on the issue of whether Suit 3 is barred by
and is not claiming limitation, we now proceed to

the idol itself. Nirmohi Akhara is claiming a duty analyse various provisions of the CrPC 1898 and
and not the right to Articles of the Limitation Act

ownership and title. Accordingly, only Article 120 1908.

can apply; and
Nature and Scope of Section 145 proceedings
(ii) Unlike the law of trusts in the United Kingdom,
231. The Magistrate attached the property by an
in India, no
order dated 29 December

158
1949 made under Section 145 of the CrPC 1898. the date of the order before mentioned in such
The plaintiffs in Suit 3 state that possession of the said subject: Provided that, if it
appears to the Magistrate that any party has within
the cause of action arose on 5 January 1950 when two months next before the date of such order been
the receiver took charge of forcibly and wrongfully dispossessed, he may treat
the party so dispossessed as if he had been in
the property and they were denied charge and
possession at such date: Provided also, that if the
management of the temple.
Magistrate considers the case one of emergency, he
232. Section 145 was included in Chapter XII of may at any time attach the subject of dispute,
the Code of 1898, titled pending his decision under this section. (5)
Nothing in this section shall preclude any party so
―Disputes as to Immovable Property‖. Section 145 required to attend, or any other person interested,
states thus: from showing that no such dispute as aforesaid
exists or has existed; and in such case the
PART M Magistrate shall cancel his said order, and all
further proceedings thereon shall be stayed, but,
274
subject to such cancellation, the order of the
―Section 145. Procedure where dispute Magistrate under sub-section (1) shall be final. (6)
concerning land, etc., is likely to cause breach of If the Magistrate decides that one of the parties was
peace or should under the first proviso to sub-section (4)
be treated as being in such possession of the said
(1) Whenever a District Magistrate, Sub-Divisional subject, he shall
Magistrate or Magistrate of the first class is
satisfied from a police report or other information PART M
that a dispute likely to cause a breach of the peace
275
exists concerning any land or water or the
boundaries thereof, within the local limits of his issue an order declaring such party to be entitled to
jurisdiction, he shall make an order in writing, possession thereof until evicted therefrom in due
stating the grounds of his being so satisfied, and course of law, and forbidding all disturbance of
requiring the parties concerned in such dispute to such possession until such eviction and when he
attend his Court in person or by pleader, within a proceeds under the first proviso to sub-section (4),
time to be fixed by such Magistrate, and to put in may restore to possession the party forcibly and
written statements of their respective claims as wrongfully dispossessed. (7) When any party to
respects the fact of actual possession of the subject any such proceeding dies, the Magistrate may
of dispute. (2) For the purposes of this section the cause the legal representative of the deceased party
expression "land or water" includes building, to be made a party to the proceeding and shall
markets, fisheries, crops or other produce of land, thereupon continue the inquiry, and if any question
and the rents or profits of any such property. (3) A arises as to who the legal representative of a
copy of the order shall be served in the manner deceased party for the purpose of such proceeding
provided by this Code for the service of a summons is, all persons claiming to be representatives of the
upon such person or persons as the Magistrate may deceased party shall be made parties thereto. (8) If
direct, and at least one copy shall be published by the Magistrate is of opinion that any crop or other
being affixed to some conspicuous place at or near produce of the property, the subject of dispute in a
the subject of dispute. (4) The Magistrate shall proceeding under this section pending before him,
then, without reference to the merits of the claims is subject to speedy and natural decay, he may
of any of such parties to a right to possess the make an order for the proper custody or sale of
subject of dispute, peruse the statements so put in, such property, and, upon the completion of the
hear the parties, receive all such evidence as may inquiry, shall make such order for the disposal of
be produced by them respectively, consider the such property, or the sale-proceeds thereof, as he
effect of such evidence, take such further evidence thinks fit. (9) The Magistrate may, if he thinks fit,
(if any) as he thinks necessary, and, if possible, at any stage of the proceedings under this section,
decide whether any and which of the parties was at on the application of either party, issue a summons

159
to any witness directing him to attend or to produce These words indicate that the Magistrate does not
any document or thing. (10) Nothing in this decide or adjudicate upon the
section shall be deemed to be in derogation of the
powers of the Magistrate to proceed under section contesting rights to possess or the merits of
107.‖ conflicting claims. The Magistrate is

Section 145 is recognised to be a branch of the concerned with determining only who was in
preventive jurisdiction of the possession on the date of the order.

Magistrate.139 Section 145(1) can be invoked on If possession has been wrongfully taken within two
the satisfaction of the Magistrate months of the order, the

that ―a dispute likely to cause a breach of the person so dispossessed is to be taken as the person
peace exists…‖. The provision in possession. In cases of

relates to disputes regarding possession of land or emergency, the Magistrate can attach the subject of
water or its boundaries which the dispute, pending

may result in breach of the peace. The function of decision. The action ultimately contemplated under
the Magistrate is not to go into Section 145 is not punitive,

questions of title, but to meet the urgency of the but preventive, and for that purpose is provisional
situation by maintaining the party only till a final or formal

in possession. The Magistrate is empowered to call adjudication of rights is done by a competent court
upon the parties to put in in the due course of law.

written statements in support of their claim to Thus, nothing affecting the past, present and future
―actual possession‖. Such an order rights of parties is

139 Commentary on the contemplated under the provision.

Criminal Procedure Code by Ratanlal and Dhirajlal
233. The object of the provision is merely to
, 20th edition (2016) at page 426
maintain law and order and to
PART M
prevent a breach of the peace by maintaining one or
276 other of the parties in

is to be served as a summons upon the parties. The possession, which the Magistrate finds they had
Magistrate is to peruse the immediately before the dispute,

statements, hear the parties and weigh the evidence, until the actual right of one of the parties has been
in order to ascertain who determined by a civil court.140

was in possession at the date of the order. The The object is to take the subject of dispute out of
Magistrate may make that the hands of the disputants,

determination ―if possible‖ to do so. Moreover, allowing the custodian to protect the right, until one
the determination is about the of the parties has established
140 Commentary on the Criminal Procedure Code
factum of possession on the date of the order by Ratanlal and Dhirajlal , 20th edition (2016) at
―without reference to the merits of page 427

the claim of any of such parties to a right to possess PART M

the subject of the dispute‖.
277

160
her right (if any) to possession in a civil court.141 provisions of Section 145. Justice Subba Rao,
This is evident from the speaking for a three judge

provisions of sub-section (6) of Section 146. The 141 Commentary on the

Magistrate declares the party Criminal Procedure Code by Ratanlal and Dhirajlal
, 20th edition (2016) at page 427 142 Commentary
which is entitled to possession ―until evicted on the Criminal Procedure Code by Ratanlal and
therefrom in due course of law.‖ Dhirajlal , 20th edition (2016) at page 451

While proceeding under the first proviso, the 143 1959 Supp (2) SCR 798
Magistrate may restore possession
PART M
to a party which has been wrongfully and forcibly
dispossessed. No party can be 278

allowed to use the provisions of Section 145 for Bench of this Court, held thus:
ulterior purposes or as a
―16… Under Section 145(6) of the Code, a
substitute for civil remedies. The jurisdiction and Magistrate is authorized to issue an order declaring
power of the civil court cannot in a party to be entitled to possession of a land until
evicted therefrom in due course of law. The
any manner be hampered.142 Magistrate does not purport to decide a party's title
or right to possession of the land but expressly
234. This Court has analysed the nature and scope
reserves that question to be decided in due course
of proceedings under
of law. The foundation of his jurisdiction is on
Section 145 in the following cases: apprehension of the breach of the peace, and, with
that object, he makes a temporary order
(i) In Bhinka v Charan Singh143, the respondent, irrespective of the rights of the parties, which will
claimed the lands in dispute have to be agitated and disposed of in the manner
provided by law. The life of the said order is co-
―to be his sir‖, while the appellants claimed to be terminus with the passing of a decree by a civil
in possession of the lands court and the moment a civil court makes an order
of eviction, it displaces the order of the criminal
as hereditary tenants. The Magistrate initiated
court. The Privy Council in Dinomoni Chowdhrani
proceedings under Section
v. Brojo Mohini Chowdhrani [(1901) LR 29 IA 24,
145, attached the lands in dispute and directed them 33] tersely states the effect of orders under Section
to be placed in 145 of the Code of Criminal Procedure thus:
―These orders are merely police orders made to
possession of a superdgidar pending disposal of prevent breaches of the peace. They decide no
those proceedings. After question of title…‖. We, therefore, hold that a
provisional order of a Magistrate in regard to
enquiries, the Magistrate concluded that the possession irrespective of the rights of the parties
appellants were entitled to be cannot enable a person to resist the suit under
Section 180 of the Act.‖
in possession until evicted in due course of law.
(Emphasis supplied)
Thereafter, the respondent
(ii) In R H Bhutani v Miss Mani J Desai144, the
filed a suit before the Revenue Courts. The appeal
appellant entered into a leave
before the Supreme
and license agreement with the first respondent to
Court arose from that proceeding. One of the issues
occupy a cabin owned
before this Court was
by her. When a dispute over increase in
whether the appellants had taken possession in
compensation arose between the
accordance with the

161
parties, the first respondent sought to evict the (Emphasis supplied) (iii) In Shanti Kumar Panda
appellant and also hand v Shakuntala Devi145, there was a dispute

over the possession of the cabin to the second and between the parties regarding a shop. Proceedings
third respondents. under Section 145

Thereafter, the appellant filed an application under were commenced on the basis of a complaint filed
Section 145 and the by the appellant and the

Magistrate commenced the proceedings. While the Magistrate attached the property. The respondent,
proceedings were who claimed to be

pending, the respondent filed a civil suit. The interested in the subject-matter of the dispute was
Magistrate concluded that not allowed to be

appellant was in actual possession of the cabin and impleaded in the proceedings. The final order
had been forcibly under Section 145 was in

144 (1969) 1 SCR 80 favour of the appellant. Revision petitions against

the order were
PART M
dismissed. Thereafter, the respondent filed a civil
279 suit and secured an

dispossessed. In the Revision Petition before the injunction. The injunction was however, vacated by
High Court, the the District Court on

Magistrate‘s order was set aside and it was held the ground that since Section 145 proceedings had
that the Magistrate had terminated in the

breached the scope of his powers under Section appellant‘s favour, the Trial Court was not justified
145. The order of the in issuing the injunction
145 (2004) 1 SCC 438
High Court was assailed before this Court, which
set aside the order of the PART M

High Court and restored the order of the 280

Magistrate. Justice JM Shelat,
unless and until the order of the Magistrate was
speaking for a three judge Bench of this Court superseded by a civil
discussed the scope of
court‘s decree and no injunction could be granted
proceedings under Section 145 if the following while the property was
terms:
‗custodia legis‘. The High Court reversed the
―8. The object of Section 145, no doubt, is to District Court‘s order. The
prevent breach of peace and for that end to provide
a speedy remedy by bringing the parties before the decision of the High Court was assailed before this
court and ascertaining who of them was in actual Court. A three judge
possession and to maintain status quo until their
rights are determined by a competent court… The Bench of this Court dismissed the appeal and dealt
enquiry under Section 145 is limited to the question with the nature of
as to who was in actual possession on the date of
proceedings under Section 145. Justice J M Shelat,
the preliminary order irrespective of the rights of
speaking for the Court
the parties.‖
held:

162
―10. The proceedings under Sections 145/146 of possession though, as between the parties, the order
the Code have been held to be quasi-civil, quasi- of the Magistrate would be evidence of possession.
criminal in nature or an executive or police action. The finding recorded by the Magistrate does not
The purpose of the provisions is to provide a bind the court. The competent court has jurisdiction
speedy and summary remedy so as to prevent a and would be justified in arriving at a finding
breach of the peace by submitting the dispute to the inconsistent with the one arrived at by the
Executive Magistrate for resolution as between the Executive Magistrate even on the question of
parties disputing the question of possession over possession.‖
the property. The Magistrate having taken (Emphasis supplied)
cognizance of the dispute would confine himself to
ascertaining which of the disputing parties was in The Court held that the order passed by the
possession by reference to the date of the Magistrate will not be treated as
preliminary order or within two months next before
binding even the interlocutory jurisdiction of the
the said date, as referred to in the proviso to sub-
civil court under Order XXXIX of
section (4) of Section 145 and maintain the status
quo as to possession until the entitlement to the Code of Civil Procedure:
possession was determined by a court, having
competence to enter into adjudication of civil ―22…The civil court shall also respect such order
rights, which an Executive Magistrate cannot. The and will be loath to arrive at an interim
Executive Magistrate would not take cognizance of arrangement inconsistent with the one made by the
the dispute if it is referable only to ownership or Executive Magistrate. However, this is far from
right to possession and is not over possession holding that the civil court does not have
simpliciter…‖ jurisdiction to make an order of injunction
inconsistent with the order of the Executive
The Court in the following observations dealt with Magistrate. The jurisdiction is there but the same
the interplay between the order shall be exercised not as a rule but as an exception.
There may be cases such as one where the order of
of a Magistrate and the jurisdiction of a civil court:
the Executive Magistrate can be shown to be
―15. It is well settled that a decision by a criminal without jurisdiction, palpably wrong or containing
court does not bind the civil court while a decision self-contradictory findings. For example, the
by the civil court binds the criminal court. (See Magistrate may have made an order treating the
Sarkar on Evidence, 15th Edn., p. 845.) A decision party dispossessed beyond two months to be as in
given under Section 145 of the Code has relevance possession. There may be cases where in spite of
and is admissible in evidence to show: (i) that there the order made by the Executive Magistrate based
was a dispute relating to a particular property; (ii) on the evidence adduced before it, the competent
that the dispute was between the particular parties; court, based on the material produced before such
(iii) that such dispute led to the passing of a court, may be inclined to hold that prima facie a
preliminary order under Section 145(1) or an very strong case for retaining or placing one of the
attachment under Section 146(1), on the parties in possession of the suit property is made
out or where it will be totally unjust or inequitable
PART M to continue one party in possession of the property
as ordered by the Executive Magistrate. In such
281 exceptional situations, the competent court (which
will mostly be a civil court) may have jurisdiction
given date; and (iv) that the Magistrate found one
for granting an order of injunction in departure
of the parties to be in possession or fictional
from the findings recorded and the declaration
possession of the disputed property on the date of
made by the Executive Magistrate under
the preliminary order. The reasoning recorded by
the Magistrate or other findings arrived at by him PART M
have no relevance and are not admissible in
evidence before the competent court and the 282
competent court is not bound by the findings
arrived at by the Magistrate even on the question of

163
Section 145 of the Code of Criminal Procedure. property under certain deeds and that the deeds
The order under Section 146 of the Code would not were inoperative and
pose a problem of that magnitude. Inasmuch as the
property is under attachment and is placed in the 146 (2015) 13 SCC 25
hands of a receiver, the civil court can comfortably 147 (1965) 3 SCR 655
examine whether it would be just and expedient to
PART M
continue with the attachment and with the same
receiver or to appoint another receiver or to make 283
some other interim arrangement during the
pendency of the civil suit.‖ void. The suit was decreed by the Trial Court, but
(Emphasis supplied) on appeal, the High

(iv) In Surinder Pal Kaur v Satpal146, reliance was Court set aside the decree. The High Court held
placed upon the decision in that as the appellants

Shanti Kumar Panda. Justice Dipak Misra (as the were not in possession of the property at the date of
learned Chief Justice the suit, their suit

then was) speaking for the two judge Bench, held must fail under the proviso to Section 42 of the
thus: Specific Relief Act as they

―10... It is a settled position of law that the had failed to ask for the further relief of recovery of
observations made in the proceedings drawn under possession from the
Section 145 CrPC do not bind the competent court
in a legal proceeding initiated before it.‖ respondents. On the date of the suit, the property in
dispute had been
235. Section 145 proceedings do not purport to
decide a party's title or right to attached by the Magistrate, exercising his powers
under Section 145 and
possession of the land. The property held in
attachment in proceedings under was not in the possession of any party. The issue
that arose before this
Section 145 is ‗custodia legis‘. Hence, it is not
necessary to secure possession Court was whether in view of the attachment, the
appellants could have in
from a party who is not in possession and is hence,
not in a position to deliver their suit, sought the relief for delivery of
possession to them. Speaking for
possession. This Court has analysed the nature of
the property under attachment the three judge Bench, Justice A K Sarkar held
thus:
in the following decisions:
―4. In our view, in a suit for declaration of title to
(i) In Deokuer v Sheoprasad Singh147, a three property filed when it stands attached under
judge Bench of this Court, Section 145 of the Code, it is not necessary to ask
for the further relief of delivery of possession. The
held that property held under attachment under fact, if it be so, that in the case of such an
Section 145 is ‗custodia attachment, the Magistrate holds possession on
behalf of the party whom he ultimately finds to
legis‘. The appeal arose out of a suit brought by the
have been in possession is, in our opinion,
appellants in 1947 for
irrelevant. On the question however whether the
a declaration that the respondents had acquired no Magistrate actually does so or not, it is unnecessary
right or title to a to express any opinion in the present case. 5. The
authorities clearly show that where the defendant is
not in possession and not in a position to deliver

164
possession to the plaintiff it is not necessary for the possession over the disputed property against the
plaintiff in a suit for a declaration of title to successful party. Ordinarily, a relief of recovery of
property to claim possession: see Sunder Singh — possession would be appropriate to be sought for.
Mallah Singh Sanatan Dharam High School, Trust In legal proceedings initiated before a competent
v. Managing Committee, Sunder Singh-Mallah court consequent upon attachment under Section
Singh Rajput High School [(1957) LR 65 IA 106] . 146(1) of the Code it is not necessary to seek relief
Now it is obvious that in the present case, the of recovery of possession. As the property is held
respondents were not in possession after the custodia legis by the Magistrate for and on behalf
attachment and were not in a position to deliver of the party who would ultimately succeed from the
possession to the appellants. The Magistrate was in court, it would suffice if only determination of the
possession, for whomsoever, it does not matter, and rights with regard to the entitlement to the
he was not of course a party to the suit. It is possession is sought for. Such a suit shall not be
pertinent to observe that in Nawab Humayun bad for not asking for the relief of possession. (3) A
Begam v. Nawab Shah Mohammad Khan [AIR decision by a criminal court does not bind the civil
(1943) PC 94] it has been held that the further court while a decision by the civil court binds the
relief contemplated by the proviso to Section 42 of criminal court. An order passed by the Executive
the Specific Relief Act is relief against the Magistrate in proceedings under Sections 145/146
defendant only. We may add that in K. Sundaresa of the Code is an order by a criminal court and that
Iyer v. Sarvajana Sowkiabil Virdhi Nidhi Ltd. too based on a summary enquiry. The order is
[(1939) ILR Mad 986] it was held that it was not entitled to respect and weight before the competent
court at the interlocutory stage. At the stage of final
PART M adjudication of rights, which would be on the
evidence adduced before the court, the order of the
284
Magistrate is only one out of several pieces of
necessary to ask for possession when property was evidence. (4) The court will be loath to issue an
in custodia legis. There is no doubt that property order of interim injunction or to order an interim
under attachment under Section 145 of the Code is arrangement inconsistent with the one made by the
in custodia legis. These cases clearly establish that Executive Magistrate. However, to say so is merely
it was not necessary for the appellants to have stating a rule of caution or restraint, on exercise
asked for possession.‖
PART M
(ii) In Shanti Kumar Panda, this Court formulated
285
the legal principles
of discretion by court, dictated by prudence and
governing the effect of the order of a Magistrate
regard for the urgent/emergent executive orders
under Section 145/146
made within jurisdiction by their makers; and
when legal proceedings are instituted before a court certainly not a tab on the power of court. The court
of competent does have jurisdiction to make an interim order
including an order of ad interim injunction
jurisdiction: inconsistent with the order of the Executive
Magistrate. The jurisdiction is there but the same
―(1) The words ―competent court‖ as used in shall be exercised not as a rule but as an exception.
sub-section (1) of Section 146 of the Code do not Even at the stage of passing an ad interim order the
necessarily mean a civil court only. A competent party unsuccessful before the Executive Magistrate
court is one which has the jurisdictional may on material placed before the court succeed in
competence to determine the question of title or the making out a strong prima facie case demonstrating
rights of the parties with regard to the entitlement the findings of the Executive Magistrate to be
as to possession over the property forming the without jurisdiction, palpably wrong or self-
subject-matter of proceedings before the Executive inconsistent in which or the like cases the court
Magistrate: (2) A party unsuccessful in an order may, after recording its reasons and satisfaction,
under Section 145(1) would initiate proceedings in make an order inconsistent with, or in departure
a competent court to establish its entitlement to from, the one made by the Executive Magistrate.

165
The order of the court — final or interlocutory, invoke its jurisdiction particularly when possession
would have the effect of declaring one of the is being examined by the civil court and parties are
parties entitled to possession and evicting in a position to approach the civil court for interim
therefrom the party successful before the Executive orders such as injunction or appointment of
Magistrate within the meaning of sub-section (6) of receiver for adequate protection of the property
Section 145.‖ during pendency of the dispute. Multiplicity of
(Emphasis supplied) litigation is not in the interest of the parties nor
should public time be allowed to be wasted over
The above formulation is essentially a restatement meaningless litigation. We are, therefore, satisfied
of the principles which emerge that parallel proceedings should not continue….‖

from a consistent line of precedent of the Court The Court rejected the submission that the principle
[See also Jhummamal alias in Ram Sumer Puri

Devandas v State of Madhya Pradesh148.] Mahant v State of UP150 will apply only after the
civil court has adjudicated on
236. Where a suit is instituted for possession or for
declaration of title before a the issue:

competent civil court, the proceedings under ―13. We are unable to accept the submission that
Section 145 should not continue. the principles laid down in Ram Sumer case
[(1985) 1 SCC 427 : 1985 SCC (Cri) 98] would
This Court has analysed the above proposition of
only apply if the civil court has already adjudicated
law in the following cases:
on the dispute regarding the property and given a
(i) In Amresh Tiwari v Lalta Prasad Dubey149, finding. In our view Ram Sumer case [(1985) 1
Justice S N Variava, SCC 427 : 1985 SCC (Cri) 98] is laying down that
multiplicity of litigation should be avoided as it is
speaking for a three judge Bench of this Court held not in the interest of the parties and public time
thus: would be wasted over meaningless litigation. On
this principle it has been held that when possession
―12… The law on this subject-matter has been is being examined by the civil court and parties are
settled by the decision of this Court in the case of in a position to approach the civil court for
Ram Sumer Puri Mahant v. State of U.P. [(1985) 1 adequate protection of the property during the
SCC 427 : 1985 SCC (Cri) pendency of the dispute, the parallel proceedings
i.e. Section 145 proceedings should not continue.‖
148 (1988) 4 SCC 452
149 (2000) 4 SCC 440 Dealing with the issue as to when the proceedings
under Section 145 should not
PART M
be pursued any further on the institution of a suit
286
for adjudication, this Court held:
98] In this case it has been held as follows: (SCC
150 (1985) 1 SCC 427
pp. 428-29, para 2) ―When a civil litigation is
pending for the property wherein the question of PART M
possession is involved and has been adjudicated,
we see hardly any justification for initiating a 287
parallel criminal proceeding under Section 145 of
the Code. There is no scope to doubt or dispute the ―14. Reliance has been placed on the case of
position that the decree of the civil court is binding Jhummamal v. State of M.P. [(1988) 4 SCC 452 :
on the criminal court in a matter like the one before 1988 SCC (Cri) 974] It is submitted that this
us…parallel proceedings should not be permitted to authority lays down that merely because a civil suit
continue and in the event of a decree of the civil is pending does not mean that proceedings under
court, the criminal court should not be allowed to Section 145 of the Criminal Procedure Code should
be set at naught. In our view this authority does not

166
lay down any such broad proposition. In this case PART M
the proceedings under Section 145 of the Criminal
Procedure Code had resulted in a concluded order. 288
Thereafter the party, who had lost, filed civil
possession on the date of the order. The real
proceedings. After filing the civil proceedings he
purpose is to decide who has actual
prayed that the final order passed in the Section
145 proceedings be quashed. It is in that context physical possession and not legal possession
that this Court held that merely because a civil suit supported by title over the land. To
had been filed did not mean that the concluded
order under Section 145 of the Criminal Procedure initiate proceedings under Section 145, the
Code should be quashed. This is entirely a different Magistrate has to be satisfied of the
situation. In this case the civil suit had been filed
first. An order of status quo had already been existence of a dispute which is likely to cause a
passed by the competent civil court. Thereafter breach of peace. The enquiry by
Section 145 proceedings were commenced. No
the Magistrate is of a summary nature, the object
final order had been passed in the proceedings
being to ensure tranquillity in
under Section 145. In our view on the facts of the
present case the ratio laid down in Ram Sumer case the locality when the dispute is likely to result in a
[(1985) 1 SCC 427 : 1985 SCC (Cri) 98] fully breach of peace.
applies. We clarify that we are not stating that in
every case where a civil suit is filed, Section 145 237. On 29 December 1949, a preliminary order
proceedings would never lie. It is only in cases under sub-section (1) of
where civil suit is for possession or for declaration
of title in respect of the same property and where Section 145 was issued by the Additional City
reliefs regarding protection of the property Magistrate, Faizabad-cum
concerned can be applied for and granted by the
Ayodhya. Simultaneously an order of attachment
civil court that proceedings under Section 145
was also passed under the
should not be allowed to continue. This is because
the civil court is competent to decide the question second proviso to sub-section (4) treating the
of title as well as possession between the parties situation to be one of emergency.
and the orders of the civil court would be binding
on the Magistrate.‖ On 5 January 1950, the receiver took charge and
(Emphasis supplied) made an inventory of the

Having set out the position established in law with attached items. Pursuant to the order of the
respect to Section 145 Magistrate, only two or three pujaris

proceedings, we now advert to the application of were permitted to go inside the place where idols
the law to the set of facts in the were kept to perform religious

present case. The provisions of Section 145 can be ceremonies like bhog and puja and the general
invoked only when there is a public was permitted to have

danger of a breach of peace. The jurisdiction of the darshan only from beyond the grill-brick wall. The
Magistrate does not extend to proceedings under Section 145

adjudicate into disputed questions of title. The were not judicial; the Magistrate while exercising
Magistrate has been vested with authority under the provision

the authority to meet the urgency of the situation was not empowered to deal with the substantive
and maintain peace. The rights of the parties. The

determination of the Magistrate is confined to proceedings under Section 145 are not akin to a
which party was in actual civil proceeding. Adjudication of

167
substantive claims over title and ownership over a Magistrate. On the contrary, in Suit-1, the City
property can be decided in a Magistrate was also impleaded as one of the
defendants and the Civil Court passed an order
competent civil proceeding. Proceedings under directing the defendants to maintain status quo. It
Section 145 are not in the nature also clarified that the Sewa, Puja as was going on,
shall continue…the Magistrate could not have
of a trial before a civil court and are merely in the
ignored this order by dropping the proceedings as
nature of police proceedings.
that would have resulted in discharge of Receiver
The Magistrate‘s order cannot adversely impact the and release of the property attached and placed in
substantive rights of parties. his charge. In other words, it could have been
construed by the Civil Judge as an order disobeying
Upon the attachment of the property and after the the order of status quo. Had the Civil Judge passed
appointment of the receiver, an order appointing a Court's Receiver and
directing the Magistrate to hand over possession of
PART M the property to him, the position might have been
different. In these circumstances, if the Magistrate
289
did not drop the proceedings but deferred it, we
the property became custodia legis and the receiver find no fault on his part. Moreover, when the
held the property for the earlier order of the Magistrate, attaching the
property and placing it in the charge of Receiver,
benefit of the true owner. The receiver so appointed could not have resulted in giving a cause of action
could not be described as a to the plaintiffs to file suit, we fail to

party interested in the dispute. By his subsequent PART M

orders dated 30 July 1953 and
290
31 July 1954, the Magistrate deferred the
proceedings and continued the order of understand as to how the subsequent order, which
merely deferred the pending proceedings, would
attachment. lend any help. The order of attachment passed by
the Magistrate itself does not give a cause of action
238. Justice Sudhir Agarwal correctly observed that and on the contrary it only makes the things known
in view of the ad-interim to the party that there appears to be some dispute
about the title and/or possession of the property
injunction in Suit 1 by which status quo was
concerned and also there is apprehension of
ordered and sewa-puja was
disturbance of public peace and order. The cause of
continued, the proceedings under Section 145 could action virtually is known to the party that there
not have been dropped as it exists some dispute and not the order of the
Magistrate whereby he attached the property in
would have disturbed the status quo. Justice question and placed it in the charge of the
Agarwal observed: Receiver.‖
(Emphasis supplied)
―2244. … From perusal of injunction order passed
by the Civil Court, we find that on 16th January, 239. In view of the settled position in law, as it
1950 a simple order, in terms of the prayer made in emerges from the decisions of
the interim injunction application, was passed
directing the parties to maintain status quo. this Court, after the Magistrate‘s order dated 29
Thereafter on 19th January, 1950, the order was December 1949 for attachment
modified but the Civil Court did not appoint a
of property, nothing prevented Nirmohi Akhara
Receiver of its own and also did not direct the City
from filing a declaratory suit for
Magistrate to get the possession transferred to any
other person or another Receiver of the Court possession and title. The Magistrate‘s order did not
instead of the Receiver appointed by the decide or adjudicate upon the

168
contesting rights to possess or the merits of The concepts of dispossession and discontinuance
conflicting claims of any of the of possession

parties. Substantive rights with respect to title and 241. Besides the absence of specific relief in
possession of the property Nirmohi‘s Suit with respect to

could have been dealt with only in civil seeking possession of the Janmasthan temple, there
proceedings before a civil court. The is another aspect to be

Magistrate did not have jurisdiction to determine explored with respect to the applicability of the
questions of ownership and title. concepts of dispossession and

The proceedings under Section 145 could not have discontinuance of possession in the facts of the
resulted in any adjudication present case. Article 142 of the

upon title or possession of the rightful owner as Limitation Act 1908 encompasses a suit for
that is within the exclusive possession of immovable property. It

domain of civil courts. Nirmohi Akhara cannot covers those suits for possession of immoveable
take the defence that no final order property which fall within either

had been passed in Section 145 proceedings and as of two descriptions. The first is when the plaintiff
a result limitation did not while in possession of the

commence. The Magistrate simply complied with property has been dispossessed. The second covers
the directions given by a civil a situation where the

court with respect to maintaining status quo in Suit plaintiff while in possession has discontinued the
1 and accordingly, deferred possession. In other words,

the proceedings under Section 145. Article 142 which deals with suits for possession of
immoveable property qualifies
PART M
this with the requirement that the plaintiff should
291 have been in possession of the

The case under Article 142 of the Limitation Act property when either of the two events have taken
1898 place namely, the event of

240. Article 142 governs a suit for possession of being dispossessed or, as the case may be, the event
immoveable property when the of having discontinued the

plaintiff while in possession has been dispossessed possession. Article 142 has not confined the
or ―has discontinued the description of the suit to simply a

possession‖. The period of limitation under Article PART M

142 is 12 years. Time begins to
292
run from the date of the dispossession or
discontinuance. Nirmohi Akhara claims suit for possession of immoveable property. The
provision incorporates a
that the cause of action arose on 5 January 1950
and the suit which was requirement of prior possession of the plaintiff and
either the dispossession or the
instituted on 17 December 1959 is within the
limitation of twelve years. discontinuance of possession while the plaintiff
was in possession. The period of

169
limitation is 12 years and time begins to run from 293
the date of dispossession or
The expressions ‗discontinuance‘ and
discontinuance. ‗dispossession‘ have been defined in P

242. Article 144 is a residuary provision dealing Ramanatha Aiyar‘s Advanced Law Lexicon152:
with suits for possession of
―Discontinuance means that a person in
immoveable property or any interest in possession goes out and is followed into possession
immoveable property not specifically by another person. It implies that all indications of
occupation have been withdrawn.‖
provided for elsewhere. As a residuary provision, ―Dispossession or ouster is wrongfully taking
Article 144 applies to suits for possession of land from its rightful owner. The
dispossession applies only to cases where the
possession of immoveable property which do not
owner of land has, by the act of some person, been
fall within a description which is
deprived altogether of his dominion over the land
specially enumerated in the articles of the schedule. itself, or the receipt of its profits. A person cannot
In the case of Article 144, be dispossessed of immoveable property unless he
was possessed thereof at the time.‖
the period of limitation is 12 years and time begins
to run when the possession of Dispossession presupposes the pre-existing
possession of the person at a given
the defendant has become adverse to the plaintiff.
time who was subsequently dispossessed. A person
243. Article 142, as seen above, incorporates two who is not in possession
distinct concepts. The first is
cannot be said to be dispossessed. Discontinuance
of dispossession and the second is of on the other hand, embodies
discontinuance of possession.
a notion of abandonment of possession and is
Dispossession connotes an ouster; it involves a sometimes described as a
situation where a person is
voluntary act of the person who discontinues
deprived of her/his possession with the coming of possession on his own accord. G W
another person into
Paton153 in his seminal treatise on
possession. Dispossession implies deprivation of a ―Jurisprudence‖ notes that ―as with most
right to possess which is not
words in the English language, the word
voluntary and involves an act of ouster which ‗possession‘ has a variety of uses and a
displaces the person who was in
variety of meanings, depending upon context and
possession of the property. The expression use‖. The author tells us that
‗dispossession‘ is defined in Black‘s
―the search for one appropriate, complete
Law Dictionary151 as follows: meaning for the word is likely to be a

―Deprivation of, or eviction from, rightful fruitless one‖.

possession of property; the wrongful taking or
withholding of possession of land from the person Black‘s Law Dictionary154 defines the expression
lawfully entitled to it; ouster.‖ ‗possession‘ thus:

151Black‘s Law ―1. The fact of having or holding property in

Dictionary, Tenth Edition at p. 572 one‘s power; the exercise of dominion over
property. 2. The right under which one may
PART M exercise control over something to the exclusion of

170
all others; the continuing exercise of a claim to the dispossessed or discontinued in possession. Where
exclusive use of a material object.‖ the case was not one of dispossession of the
152 P Ramanantha Aiyar‘s Advanced Law plaintiff or discontinuance of possession by him,
Lexicon, Fifth Edition at pgs. 1537 and 1563 153 Article 142 did not apply. Suits based on title alone
G. W. Paton and David P. Derham, A Text-book of and not on possession or discontinuance of
Jurisprudence, 3rd Edition, Oxford: Clarendon possession were governed by Article 144 unless
Press (1964) 154 Black‘s Law Dictionary, Tenth they were specifically provided for by some other
Edition at page 1351 articles. Therefore, for application of Article 142,
the suit is not only on the basis of title but also for
PART M possession.‖

294 245. In order to bring the suit within the purview of

Article 142, the following
In Supdt and Remembrancer of Legal Affairs West
Bengal v Anil Kumar requirements must be fulfilled:

Bhunja155, this Court observed that ―possession (i) The suit must be for possession of immoveable
is a polymorphous term‖ and, property; 155 (1979) 4
SCC 274 156 (1995) 1 SCC 311
therefore, it was not possible to ascribe a meaning
which would apply in every PART M

context. Drawing sustenance from Salmond‘s 295

Jurisprudence, the Court noted that
(ii) The plaintiff must establish having been in
possession implies a right and a fact; the right to possession of the property; and
enjoy annexed to the right to
(iii) The plaintiff should have been dispossessed or
property and the fact of the real intention. must have discontinued
Possession as a concept comprehends
possession while in possession of the property.
―corpus possessionis and animus possidendi‖. The
former embraces the power to For Article 142 to apply, these requirements must
cumulatively be established.
use the thing in possession and the existence of a
ground of expectation that the 246. The Suit by Nirmohi Akhara postulates that
the Janmasthan, commonly
use of the possession shall not be interfered with.
The latter postulates the intent known as Janmabhumi, which is the birth-place of
Lord Ram ―belongs and has
to appropriate to oneself the exclusive use of the
thing which is possessed. always belonged‖ to Nirmohi Akhara which has
been ―managing it and receiving
244. In Shyam Sunder Prasad v Raj Pal Singh156,
this Court speaking through offerings‖. According to the plaintiffs, the temple
has ever since been in the
a Bench of three judges elaborated on the
distinction between Articles 142 and possession of Nirmohi Akhara. The grievance in
the Suit is that the plaintiffs were
144 of the Limitation Act 1908. The Court
observed: wrongfully deprived of their management and
charge of the temple as a result of
―3…Under the old Limitation Act, all suits for
possession whether based on title or on the ground the order of attachment under Section 145 and the
of previous possession were governed by Article proceedings have been
142 wherein the plaintiff while in possession was

171
unduly prolonged by the Magistrate with the see, an ingenious effort has been made to gloss
connivance to the Muslim parties. over the contents of the suit in

Nirmohi Akhara prays for the removal of the the written submissions. This is impermissible. Mr
receiver from management and S K Jain, learned Senior

charge and for delivering it to the plaintiffs. Counsel appearing on behalf of the plaintiff in Suit
Essentially, it is on the basis of the 3, made the following

expressions ―belongs‖ in paragraph 2 and submission in paragraph 13(d) of his written

―possession‖ in paragraph 4 of the submissions:

pleadings that Nirmohi Akhara has sought to bring ―(d) The plaintiff – Nirmohi Akhara was not only
the suit within the purview of claiming ownership and possession of the property
i.e. the Main Temple or the Inner Courtyard but
Article 142 (and hence, outside the purview of was also claiming to be the Manager (Shebiat) of
residuary Article 120). ―Janma Asthan‖ as well as the idols of Lord Ram
Chandra, Laxmanji, Hanumanji and Saligramji.‖
247. Dr Rajeev Dhavan, learned Senior Counsel
(Emphasis supplied)
appearing on behalf of the
In paragraph 17(j) of the written submissions, it has
Sunni Central Waqf Board, has made a painstaking
been urged:
effort to demonstrate how a
―(j) Since the property was attached and placed
careful attempt has been made on behalf of
under a receiver, it is incumbent for the court to
Nirmohi Akhara to travel beyond the
decide and adjudicate the issue of title and the suits
pleadings and more specifically the relief which cannot be dismissed as barred by limitation. The
has been claimed in the suit by property must revert to the rightful owner and
cannot remain custodia legis for time ad-infinitum.
seeking to expand the scope of the suit in the Hence in a suit for restoration of possession from a
written submissions. receiver, the question of limitation can never arise
and such suits cannot (sic) never become barred by
PART M limitation so long as such property continues to be
under a receiver at least of a person from whom
296
possession was taken.‖
248. In our view, it would be instructive having set (Emphasis supplied)
out the ambit of Suit 3, to
Again, in paragraph 18(k), it has been stated:
demonstrate how the written submissions attempt
―(k). Since the property is under the control of the
(through the craft of Counsel)
receiver, a suit for mesne profits for incomes
to change the nature of the suit in order to bring it derived by the receiver can still be filed by the true
within limitation. As a matter of owner and in such a suit, for which

first principle, the plaint must be read as a whole. PART M

However, this is quite distinct
297
from permitting the plaintiff to a suit to alter its
cause of action arises any benefit accrues would
nature on the basis of written
thus give rise to a continuous cause of action.
submissions in appeal. Any alteration in the content While determining the issue of entitlement of
of a plaint can only take mesne profits, the question of title will have to be
adjudicated and upon adjudication possession will
place by an amendment under Order VI Rule 17 of have to be delivered by the receiver to the true
the CPC. Instead, as we shall owner. (i) Ellappa Naicken vs Lakshmana Naicken

172
AIR 1949 Madras 71 (ii) Rajab of Venkatagiri v. Rajagopala Ayyangar, speaking for the three judge
Isakapalli Subbiah, ILR 26 Madras 410.‖ Bench, observed:
(Emphasis supplied)
―24…Though the word ―belonging‖ no doubt is
Then, in paragraph 18(m), it has been stated: capable of denoting an absolute title, is
nevertheless not confined to connoting that sense.
―(m) The plaintiff – Nirmohi Akhara was not only Even possession of an interest less than that of full
claiming ownership and possession of the property ownership could signified by that word. In Webster
i.e. the Main Temple or the Inner Courtyard but ―belong to‖ is explained as meaning inter alia ―to
was also claiming to the Manager (Shebiat) of be owned by, be the possession of‖. The precise
―Janma Asthan‘ as well as the idols of Lord Ram sense which the word was meant to convey can
Chandra, Laxmanji, Hanumanji and Sabgramji. It is therefore be gathered only by reading the document
stated for the reasons which found favour with the as a whole and adverting to the context in which it
court to hold that the suit OOS No. 5 of 1989 is occurs.‖
within limitation that the deity was a perpetual
minor, the suit of the plaintiff Nirmohi Akhara On the facts of the case, it was held that the
cannot also be held to be barred by limitation.‖ circumstances of the tenancy were
(Emphasis supplied)
material for determining the nature of the assertion.
Finally, it has been stated in paragraph 18 that: The origin of the tenancy was

―18. The claim of the property ―belonging‖ to the not definitely known, the lessee had constructed
plaintiff in the plaint is based on two-fold super structures and the
submissions – (i) that the property belongs to the
plaintiff in the capacity of manager/shebait; and (ii) appellant and his ancestors had been enjoying the
that the Plaintiff being in possession acquires property for three quarters of
possessory title in view of Section 110 Evidence
a century and more. Transfers had been affected
Act and is entitled to be and continue in possession
and the property had been the
unless the defendant can show a better title than the
Plaintiff.‖ subject of inheritance. There was a public
(Emphasis supplied) document to the effect that though it
This is completely at variance with the pleadigns in was government land, there was a permanent
the suit. heritable and transferable right. In
249. The expression ―belonging to‖ is not a term this context, it was held that use of the word
of art and its content varies ―belonging‖ did not amount to
according to context. In Raja Mohammad Amir repudiation of the title of the government.
Ahmad Khan v Municipal Similarly, the Court held that the use of
PART M the expression owner did not denote ownership in
an absolute sense so as to
298
amount to a renunciation or disclaimer of tenancy:
Board of Sitapur157, a three judge Bench of this
Court considered whether the ―25…Though divorced from the context these
words are capable of being construed as an
use of the expression ―belonging to him‖ by a
assertion of absolute ownership, they cannot, in our
tenant amounted to a disclaimer of
opinion, in the setting in which they occur and
the reversionary interest of the Government. In that bearing in mind the history of the enjoyment by the
context, Justice N appellant and his predecessors of this property, be
deemed an assertion unequivocal in nature of

173
absolute 157 AIR 1965 ―29…We have discussed the cases where the
SC 1923 distinction between ―belonging to‖ and
―ownership‖ has been considered. The following
PART M facts emerge here: (1) the assessee has parted with
the possession which is one of the essentials of
299
ownership. (2) The assessee was disentitled to
ownership sufficient to entail a forfeiture of a recover possession from the vendee and the
permanent tenancy of this nature. In this assessee alone until the document of title is
connection it might be noticed that this enjoyment executed was entitled to sue for possession against
is stated to be with the consent of the Government. others i.e. other than the vendee in possession in
If the assertion were understood to be as an this case. The title in rem vested in the assessee. (3)
absolute owner in derogation of the rights of the The vendee was in rightful possession against
Government as landlord, the reference to the 158 1986 Supp SCC 700
consent of Government to such an enjoyment
PART M
would be wholly inappropriate. Consent would
have relevance only if the Government had interest 300
in the property and we, therefore, understand the
passage to mean that the permanent, transferable the vendor. (4) The legal title, however, belonged
and heritable, particularly the right to transfer to the vendor. (5) The assessee had not the totality
which was being denied by the municipality, was of the rights that constitute title but a mere husk of
stated to have been enjoyed with the consent of the it and a very important element of the husk.‖
Government. That is an additional reason for our
holding that at the worst the assertion was not Both these decisions, which have been pressed in
unequivocal as to entail a forfeiture of the tenancy.‖ aid by Dr Dhavan indicate that

250. In Late Nawab Sir Mir Osman Ali Khan v the expression ‗belonging to‘ must receive a
Commissioner of Wealth meaning based on context. In a

Tax158, a two judge Bench of this Court construed given context, the words may convey the meaning
the expression ―belonging to of an absolute title but in other

the assessee on the valuation date‖ in Section 2(m) factual situations the words may convey something
of the Wealth Tax Act 1957. which falls short of an

In the context of the statutory provision which was absolute interest.

being interpreted, this Court
251. In the present case, it is evident that the use of
held that mere possession without a legal right the expression ‗belongs‘ by
would not bring the property within
the Nirmohi Akhara in the plaint has been deployed
the meaning of the expression ―net-wealth‖ for it only in the context of
would not be an asset which
management and charge. The entire case of
belongs to the assessee. The Court adverted to the Nirmohi Akhara is of the deprivation
decision in Raja Mohammad
of its shebaiti rights by the Magistrate‘s order
noting that though the phrase ―belonging to‖ was under Section 145. The claim of
capable of denoting an absolute
Nirmohi Akhara is against the state so as to enable
title, it was nevertheless not confined to connoting the plaintiff to utilise the
that sense. In the case at
usufruct to render services to the deity. Nirmohi
hand, the Court held: Akhara, in other words, claims

174
ancillary rights with reference to management and shebait is a manager and not a trustee, shebaitship
charge. Indeed, the most is not a ‗mere office‘:

significant aspect which emerges from the relief ―12…The shebait has not only duties to discharge
which has been claimed in Suit 3 in connection with the endowment, but he has a
beneficial interest in the debutter property. As the
is a decree for the removal of the first defendant Judicial Committee observed in the above case, in
―from the management and almost all such endowments the shebait has a share
in the usufruct of the debutter property which
charge of the said temple of Janmabhumi and for
depends upon the terms of the grant or upon
delivering the same to the
custom or usage. Even where no emoluments are
plaintiff‖. Suit 3 filed by Nirmohi Akhara is attached to the office of the shebait, he enjoys some
therefore not a suit for possession sort of right or interest in the endowed property
which partially at least has the character of a
which falls within the meaning and ambit of Article proprietary right. Thus, in the conception of
142. shebaiti both the elements of office and property, of
duties and personal interest, are mixed up and
252. Nirmohi Akhara has instituted Suit 3 claiming blended together; and one of the elements cannot
to be a shebait. A four judge be detached from the other. It is the presence of this
personal or beneficial interest in the endowed
Bench of this Court in Angurbala Mullick v
property which invests shebaitship with the
Debabrata Mullick159 dealt with the
character of proprietary rights and attaches to it the
1591951 SCR 1125 legal incidents of property.‖

PART M 253. A Constitution Bench of this Court speaking

through Chief Justice B K
301
Mukherjea in Commissioner, Hindu Religious
nature and position of a shebait. Justice B K Endowments Madras v Sri
Mukherjea (as he then was)
Lakshmindra Thirtha Swamiar Of Sri Shirur
speaking for the Court held that the position of a Mutt161, construed the position of
shebait in regard to the debutter
160 AIR 1922 PC 123
property does not exactly correspond to that of a 161 1954 SCR 1005
trustee in English law. In
PART M
English law, the legal estate in trust property vests
in the trustee. On the other 302

hand, in the case of a Hindu religious endowment, a Matadhipati. Adverting to the earlier decision in
the ownership of the dedicated Angurbala Mullick, this Court

property is transferred to the deity or institution as held that as in the case of a shebait so also in a case
a juristic person and the involving a mahant, both

shebait is a mere manager who handles the affairs elements of office and property are blended
with respect to the deity‘s together:

properties. Referring to the extract from the Privy ―11. As regards the property rights of a
Council‘s decision in Vidya Mathadhipati, it may not be possible to say in view
of the pronouncements of the Judicial Committee,
Varuthi Thirtha v Balusami Ayyar160, this Court which have been accepted as good law in this
observed that though, the country ever since 1921, that a Mathadhipati holds
the Math property as a life tenant or that his

175
position is similar to that of a Hindu widow in completely cut off, the ordinary rules of succession
respect to her husband's estate or of an English do not apply.‖
Bishop holding a benefice. He is certainly not a
trustee in the strict sense. He may be, as the Privy The claim of Nirmohi Akhara for management and
Council [ Vide Vidya Varuthi v. Balusami, 48 IA charge therefore rests on its
302] says, a manager or custodian of the institution
assertion of being a shebait. In the case of a shebait
who has to discharge the duties of a trustee and is
as the above decisions
answerable as such; but he is not a mere manager
and it would not be right to describe Mahantship as authoritatively explained, the elements of office
a mere office. A superior of a Math has not only and of a proprietary interest are
duties to discharge in connection with the
endowment but he has a personal interest of a blended together. The Suit by Nirmohi Akhara was
beneficial character which is sanctioned by custom a suit for restoration of
and is much larger than that of a Shebait in the
debutter property. It was held by a Full Bench of management and charge so as to enable the Akhara
the Calcutta High Court [ Vide Monahar v. to have the benefit of the
Bhupendra, 60 Cal 452] that Shebaitship itself is
usufruct in the discharge of its obligations towards
property, and this decision was approved of by the
the deity. The suit was
Judicial Committee in Ganesh v. Lal Behary [63 IA
448] and again in Bhabatarini v. Ashalata [70 IA therefore not a suit for possession within the
57]. The effect of the first two decisions, as the meaning of Article 142. Despite the
Privy Council pointed out in the last case, was to
emphasise the proprietary element in the Shebaiti ingenuity of counsel in seeking to expand the
right and to show that though in some respects an nature and ambit of the suit, we are
anomaly, it was an anomaly to be accepted as
having been admitted into Hindu law from an early categorically of the view that written submissions
date. This view was adopted in its entirety by this filed in the appeal cannot be a
Court in Angurbala v. Debabrata [1951 SCR 1125]
valid basis to reconfigure the nature of the suit. The
and what was said in that case in respect to Shebaiti
suit has to be read on the
right could, with equal propriety, be applied to the
office of a Mahant. Thus, in the conception of basis of the original plaint in the trial court. Despite
Mahantship, as in Shebaitship, both the elements of the amendment to the plaint in
office and property, of duties and personal interest
are blended together and neither can be detached Suit 3, the relief as it stands does not bring it within
from the other. The personal or beneficial interest the ambit of Article 142. It
of the Mahant in the endowments attached to an
institution is manifested in his large powers of may also be noted at this stage that during the
disposal and administration and his right to create course of the submissions, Mr S K
derivative tenures in respect to endowed properties;
Jain, clarified that Nirmohi Akhara by using the
and these and other rights of a similar character
expression ―belongs to‖ is not
invest the office of the Mahant with the character
of proprietary right which, though anomalous to claiming title or ownership to the property. The
some extent, is still a genuine legal right. It is true Suit by Nirmohi Akhara is not a
that the Mahantship is not heritable like ordinary
property, but that is because of its peculiar nature suit for possession. Hence, neither Article 142 nor
and the fact that the office is generally held by an Article 144 has any
ascetic, whose connection with his natural family
being application.

PART M 254. In Ramiah v N Narayana Reddy162, a two

judge Bench of this Court
303

176
elaborated on the distinction between Articles 142 rights. It merely sought a decree against a
and 144 of the Limitation Act Magistrate for the handing over of

1908 (corresponding to Articles 64 and 65 of the management and charge. It had to seek relief
Limitation Act 1963) thus: against someone interested in

―9…Article 64 of the Limitation Act, 1963 opposing its claim and by getting its own right
(Article 142 of the Limitation Act, 1908) is adjudicated. Instead, without doing
restricted to suits for possession on
162 (2004) 7 SCC 541 so, it merely sought a decree for the handing over
of management and charge
PART M
against the Magistrate. Such a suit was indeed not
304 maintainable.

dispossession or discontinuance of possession. In 255. Once it has been held that neither Article 47
order to bring a suit within the purview of that nor Article 142 is attracted,
article, it must be shown that the suit is in terms as
well as in substance based on the allegation of the Suit 3 filed by Nirmohi Akhara is governed by the
plaintiff having been in possession and having provisions of Article 120, the
subsequently lost the possession either by
residuary article in the Limitation Act 1908. The
dispossession or by discontinuance. Article 65 of
period of limitation under Article
the Limitation Act, 1963 (Article 144 of the
Limitation Act, 1908), on the other hand, is a 120 is six years. Nirmohi Akhara claims that the
residuary article applying to suits for possession cause of action arose on 5
not otherwise provided for. Suits based on the
plaintiff's title in which there is no allegation of PART M
prior possession and subsequent dispossession
alone can fall within Article 65. The question 305
whether the article of limitation applicable to a
January 1950. The suit was instituted on 17
particular suit is Article 64 or Article 65, has to be
December 1959. Hence, the suit is
decided by reference to pleadings.‖
outside the prescribed period of limitation and is
There is a fundamental reason why the Suit
barred.
instituted by Nirmohi Akhara is not
Continuing wrong
maintainable, quite apart from the bar of limitation.
Nirmohi Akhara sought a relief 256. The alternate submission which has been
urged on behalf of the Nirmohi
simpliciter of the handing over of management and
charge of the Janmasthan by Akhara by Mr S K Jain is based on the provisions
of Section 23 of the Limitation
the receiver to it. The receiver was appointed by
the Magistrate in the Act 1908. It is submitted that the denial or
obstruction of Nirmohi Akhara‘s
proceedings under Section 145. The Magistrate
who attached the property holds ‗absolute‘ shebait rights of management and
charge is a continuing wrong and by
it for the true owner who obtains an adjudication of
rights before the court of virtue of Section 23, a fresh cause of action arose
every day. Section 23 reads as
competent jurisdiction. Nirmohi Akhara sought no
declaration of its status or follows:

177
―23. Continuing breaches and wrongs. - In the by purchase. They commenced the construction of
case of a continuing breach of contract and in the dwellings for watchmen on
case of a continuing wrong independent of
contract, a fresh period of limitation begins to run the top of the hill and for other temple employees,
at every moment of the time during which the besides constructing
breach or the wrong, as the case may be,
dharamsalas. This was objected to by the
continues.‖
Digambaris who instituted a suit
257. The contention of Mr S K Jain is that upon the
against the Swetambaris claiming that the entire
order of attachment, the
hill was sacred. There were
charge and management, along with property
Charans in the old shrines containing impressions
related rights of the Janmasthan
of the footprints of saints,
temple have been taken over and are the subject
bearing a lotus mark. The Swetambaris evolved
matter of Suit 3. This, it is
another form of Charan which
urged, constitutes a continuing wrong so long as
was opposed by the Digambaris who refused to
they are not restored. In this
worship it as being a
context, reliance has been placed on the decision of
representation of a detached part of the human
the Privy Council in Sir Seth
body. Both the lower courts held
Hukum Chand v Maharaj Bahadur Singh163, in
that the action of placing the Charans in the shrines
support of the submission that
was wrong in respect of
obstruction of prayer and worship is a continuing
which the Digambaris were entitled to complain.
wrong. The submission is that
One of the questions which
the obstruction of the plaintiffs‘ right to manage the
arose before the Privy Council was in regard to the
bhog and prayers
finding of the Subordinate
independently, as a result of the appointment of a
judge that the suit brought by the Digambaris was
receiver is a continuing wrong
within limitation. In that
within the meaning of Section 23 and hence, every
context, Sir John Wallis delivering the judgment of
act of obstruction provides a
the Privy Council held:
163 (1933) 38 LW 306 (PC)
―As regards limitation the Subordinate Judge held
PART M
on rather insufficient grounds that the acts
306 complained of took place within six years of suit so
that this part of the claim could not be barred by
fresh cause of action and a fresh starting point for Article 120, but he also held that it could not be
limitation. barred under that article as it was a continuing
wrong, as to which under section 23 of the
258. The decision in Hukum Chand, involved a Limitation Act a fresh period begins to run at every
contest between the moment of the day on which the wrong continues.
The High Court on the other hand were of opinion
Swetambari and Digambari Jain sects over the right
that it was not a continuing wrong and that the
of worship of Parasnath hill.
claim was barred under article 120. In their
The Swetambaris acquired the proprietary rights of Lordships' opinion the Subordinate Judge was right
the Raja of Palgunj in the hill in holding that the acts complained of were a
continuing wrong and consequently that this part of
the claim is not barred. This question is covered

178
PART M a penalty for an omission to file a return which may
extend to Rs. 1000/-.
307
However, Section 79 stipulates that no court shall
by the decision of this Board in Rajrup Koer v. take cognizance of any offence
Abul Hossein [(1880) I.L.R. 6 Cal. 394 : L.R. 7
I.A. 240.] , of diverting an artificial water course unless a complaint is filed within six months from
and cutting off the watersupply of the plaintiff's the date of the alleged
lower lying lands.‖
164(1879-80) 7 IA 240
259. The above extract has been relied upon in 165 (1972) 2 SCC 890
support of the submission that a
PART M
deprivation of the right to worship is a continuing
wrong. Significantly, the Privy 308

Council relied upon its earlier decision in Maharani commission of offence or within six months from
Rajroop Koer v Syed Abul the date on which the alleged

Hossein164 which involved an asserted right to an commission of offence came to the knowledge of
artificial water-course by the inspector, whichever is

cutting of the water supply of the lands belonging later. However, the explanation stipulates that if the
to the plaintiffs. In Maharani offence is a continuing

Rajroop Koer, the Privy Council held, speaking offence, the limitation shall be computed with
through Sir Montague E Smith, reference to every point of time

that obstructions which interfered with the flow of during which the offence continued. Under
water to the plaintiff were in the regulation 3, annual returns in the

nature of continuing nuisances: preceding year were required to be filed on or

before the twenty-first day of
―If the Judges really meant to apply the limitation
of Article 34 above referred to, their decision is January each year. Dealing with the question of
clearly wrong; for the obstructions which interfered limitation, this Court considered
with the flow of water to the Plaintiff's mehal were
whether an offence involving a failure to file a
in the nature of continuing nuisances, as to which
return is covered by the substantive
the cause of action was renewed de die in diem so
long as the obstructions causing such interference part of Section 79 (in which case the complaint was
were allowed to continue. Indeed, sect. 24 of the time barred) or by the
statute contains express provision to that effect.‖
explanation, involving a continuing offence. Justice
260. The notion of what constitutes a continuing J M Shelat, speaking for the
wrong has evolved through the
Bench observed:
decisions of this Court, depending on the factual
context involved in each case. ―5. A continuing offence is one which is
susceptible of continuance and is distinguishable
The decision of two judges in State of Bihar v from the one which is committed once and for all.
Deokaran Nenshi165, dealt with It is one of those offences which arises out of a
failure to obey or comply with a rule or its
the provisions of Sections 66 and 79 of the Mines
requirement and which involves a penalty, the
Act 1952. Section 66 provides
liability for which continues until the rule or its
requirement is obeyed or complied with. On every

179
occasion that such disobedience or non-compliance held:
occurs and reoccurs, there is the offence
committed. The distinction between the two kinds ―11. A liability in law ordinarily arises out of an
of offences is between an act or omission which act of commission or an act of omission. When a
constitutes an offence once and for all and an act or person does an act, which law prohibits him from
omission which continues, and therefore, doing it and attaches a penalty for doing it, he is
constitutes a fresh offence every time or occasion stated to have committed an act of commission
on which it continues.‖ which amounts to a wrong in the eye of law.
Similarly, when a person omits to do an act which
is required by law to be performed by him and
attaches a penalty for such omission, he is said to
The Court held that the infringement occurred upon have committed an act of omission which is also a
the failure to file annual wrong in the eye of law. Ordinarily a wrongful act
or failure to perform an act required by law to be
returns on or before January 21 of the relevant year done becomes a completed act of commission or of
and was complete on the omission, as the case may be, as soon as the
wrongful act is committed in the former case and
owner failing to furnish the annual returns by that
when the time prescribed by law to perform an act
day. The Court held that the
expires in the latter case and the liability arising
provision does not stipulate that the owner or therefrom gets fastened as soon as the act of
manager would be guilty if he commission or of omission is completed.‖

continues to carry on the mine without furnishing

the returns or that the offence
This Court made a distinction between a continuing
continues until the requirement of regulation 3 is wrong and a wrong or default
complied with. In other words:
which is complete when it is committed in the
PART M following observations:

309 ―11…The distinctive nature of a continuing

wrong is that the law that is violated makes the
―9…As in the case of a construction of a wall in wrongdoer continuously liable for penalty. A
violation of a rule of a bye-law of a local body, the wrong or default which is complete but whose
offence would be complete once and for all as soon effect may continue to be felt even after its
as such construction is made, a default occurs in completion is, however, not a continuing wrong or
furnishing the returns by the prescribed date.‖ default.‖ 166 (1981) 2
SCC 790
261. Another decision of a two judge of this Court
in Commissioner of Wealth PART M

Tax, Amritsar v Suresh Seth166, was based on the 310

provisions of the Wealth Tax
Dealing with the provisions of the statute, this
Act. Section 18(1)(a) provided for the levy of a Court held that the default is only
penalty for failure to file a return of
one which takes place on the expiry of the last date
net-wealth without reasonable cause. The issue of filing a return and is not a
before this Court was whether
continuing wrong. Consequently, the default does
the default in filing a return amounts to a not give rise to a fresh cause of
continuing wrong. Justice E S
action every day. Indicating in the following
Venkataramiah (as the learned Chief Justice then passage illustrations of continuing
was) speaking for this Court

180
wrongs, the Court held: more than seven months after the due date. The
three judge Bench disapproved
―17. The true principle appears to be that where
the wrong complained of is the omission to of the decision in Suresh Seth. Justice Sabyasachi
perform a positive duty requiring a person to do a Mukherji (as the learned
certain act the test to determine whether such a
wrong is a continuing one is whether the duty in Chief Justice then was) held that the default
question is one which requires him to continue to continued so long as a return was
do that act. Breach of a covenant to keep the
not filed and was hence a continuing wrong:
premises in good repair, breach of a continuing
guarantee, obstruction to a right of way, obstruction ―19. The imposition of penalty not confined to the
to the right of a person to the unobstructed flow of first default but with reference to the continued
water, refusal by a man to maintain his wife and default is obviously on the footing that non-
children whom he is bound to maintain under law compliance with the obligation of making a return
and the carrying on of mining operations or the is an infraction as long as the default continued.
running of a factory without complying with the Without sanction of law no penalty is imposable
measures intended for the safety and well-being of with reference to the defaulting conduct. The
workmen may be illustrations of continuing position that penalty is imposable not only for the
breaches or wrongs giving rise to civil or criminal first default but as long as the default continues and
liability, as the case may be, de die in diem.‖ such penalty is to be calculated at a prescribed rate
on monthly basis is indicative of the legislative
intention in unmistakable terms that as long as the
assessee does not comply with the requirements of
In the view of this Court, non-performance of any
law he continues to be guilty of the infraction and
of the acts mentioned in
exposes himself to the penalty provided by law.‖
Section 18(1)(a) gives rise to a single breach and
to a single penalty, the

measure of which however relates to the time lag 263. The application of the principle of continuing
between the last date on which wrong in the context of

the return has to be filed and the date on which it is service jurisprudence came up before a two judge
actually filed. Bench of this Court in Union

262. The provisions of another revenue statute, the of India v Tarsem Singh168. In that case, the
Income Tax Act 1961 came respondent was invalidated out of

up for consideration before a three judge Bench of the Indian Army on medical grounds in November
this Court in Maya Rani Punj 1983. He approached the High

v CIT167. In this case, Section 271(1)(a) of the Court in 1999 seeking disability pension. The High
Income Tax Act 1961 entailed Court issued a mandamus for

imposing a penalty for filing late returns. The the payment of disability pension but restricted it to
penalty was imposable not only for a period of 38 months prior to

the first default but as long as the default the institution of the writ petition. The claim of the
continued. The assessee filed its return respondent however was that

167 (1986) 1 SCC 445 disability pension should be granted with effect
from November 1983 which was
PART M
allowed by the Division Bench of the High Court in
311 a Letters Patent Appeal. In a

181
challenge before this Court to the above decision of
the Division Bench of the
The High Court in appeal was held not to be
High Court, Justice R V Raveendran, speaking for justified in directing the payment of
the two judge Bench,
arrears for the payment beyond three years before
observed that to the principle that a belated service the institution of the writ
claim is liable to be rejected
petition.
168 (2008) 8 SCC 648
264. Many of the above judgments have adverted
PART M to a three judge Bench

312 decision in Balakrishna Savalram Pujari Waghmare

v Shree Dhyaneshwar
on the ground of delay and laches, there is a settled
exception in relation to a Maharaj Sansthan169. The appellants claimed
rights of hereditary worshippers in
continuing wrong. However, there is a further
exception to the exception where 1691959 Supp (2) SCR
476
the grievance is in respect of a decision which is
liable to affect others in the PART M

service prejudicially. This Court held: 313

―7. To summarise, normally, a belated service- a religious institution and that their ancestors were
related claim will be rejected on the ground of in possession of a temple and
delay and laches (where remedy is sought by filing
a writ petition) or limitation (where remedy is in the management of its affairs including the
sought by an application to the Administrative worship of a shrine. The trustees
Tribunal). One of the exceptions to the said rule is
cases relating to a continuing wrong. Where a dismissed some pujaris for misconduct. Meantime,
service-related claim is based on a continuing in 1922, the pujaris obtained
wrong, relief can be granted even if there is a long
forcible possession of the temple. The trustees
delay in seeking remedy, with reference to the date
instituted a suit which resulted in
on which the continuing wrong commenced, if
such continuing wrong creates a continuing source a decree. Possession of the temple was recovered in
of injury. But there is an exception to the execution of the decree.
exception. If the grievance is in respect of any
order or administrative decision which related to or Later, the pujaris instituted a suit claiming
affected several others also, and if the reopening of hereditary rights under the religious
the issue would affect the settled rights of third
parties, then the claim will not be entertained. For institution. In an appeal arising from the decree in
example, if the issue relates to payment or re- the suit, the High Court held
fixation of pay or pension, relief may be granted in
that Article 120 of the Limitation Act applied, and
spite of delay as it does not affect the rights of third
the suit had been initiated
parties. But if the claim involved issues relating to
seniority or promotion, etc., affecting others, delay beyond the period of six years prescribed by the
would render the claim stale and doctrine of article. In appeal before this
laches/limitation will be applied. Insofar as the
consequential relief of recovery of arrears for a past Court, it was urged that the suit was not barred
period is concerned, the principles relating to under Article 120 because
recurring/successive wrongs will apply.‖

182
Section 23 of the Limitation Act applied, the was held not to constitute a continuing wrong. In
conduct of the trustees being a that context, the Court noted:

continuing wrong. While considering the argument, ―We think there can be no doubt that where the
Justice PB Gajendragadkar wrongful act complained of amounts to ouster, the
resulting injury to the right is complete at the date
(as the learned Chief Justice then was) held: of the ouster and so there would be no scope for the
application of Section 23 in such a case. That is the
―31… In dealing with this argument it is
view which the High Court has taken and we see
necessary to bear in mind that Section 23 refers not
no reason to differ from it.‖
to a continuing right but to a continuing wrong. It is
the very essence of a continuing wrong that it is an This Court distinguished the decision of the Privy
act which creates a continuing source of injury and Council in Maharani Rajroop
renders the doer of the act responsible and liable
for the continuance of the said injury. If the Koer v Syed Abul Hossein170 on the ground that it
wrongful act causes an injury which is complete, was a case where a
there is no continuing wrong even though the
damage resulting from the act may continue. If, continuing obstruction caused to the flow of water
however, a wrongful act is of such a character that was held to be in the nature of
the injury caused by it itself continues, then the act
continuing nuisances. Similarly, the decision in Sir
constitutes a continuing wrong. In this connection
Seth Hukum Chand v
it is necessary to draw a distinction between the
injury caused by the wrongful act and what may be Maharaj Bahadur Singh171 relied on the earlier
described as the effect of the said injury. It is only decision in Maharani Rajroop
in regard to acts which can be properly
characterised as continuing wrongs that Section 23 Koer. Distinguishing the decision, this Court held
can be invoked.‖ that the action which was

impugned did not amount to ouster or complete

dispossession of the plaintiffs.
265. This Court held that the act of the trustees in
discontinuing the alleged 266. A continuing wrong, as this Court held in
Balakrishna Savalram is an act
rights of the appellants as hereditary worshippers
and in claiming and obtaining which creates a continuing source of injury. This
makes the doer of the act liable
possession from them in the suit in 1922 could not
held to be a continuing wrong. for the continuance of the injury. However, where a
wrongful act amounts to an
PART M
ouster, as in the present case, the resulting injury is
314 complete on the date of the

The Court held that the decree obtained by the ouster itself. A wrong or default as a result of
trustees, had effectively and which the injury is complete is not a

completely injured the rights of the appellants continuing wrong or default even though its effect
though the damage may have continues to be felt despite its

subsequently continued. Upon the execution of the completion. 170

decree, the rights of the (1879-80) 7 IA 240 171 (1933) 38 LW 306 (PC)

appellants were completely injured and though PART M

their dispossession continued, it
315

183
267. The submission of Nirmohi Akhara is based following terms:
on the principle of continuing
―In G.D. Bhattar v. State [AIR 1957 Cal 483 : 61
wrong as a defence to a plea of limitation. In CWN 660 : 1957 Cri LJ 834] it was pointed out
assessing the submission, a that a continuing offence or a continuing wrong is
after all a continuing breach of the duty which itself
distinction must be made between the source of a is continuing. If a duty continues from day to day,
legal injury and the effect of the non-performance of that duty from day to day is
a continuing wrong.‖
the injury. The source of a legal injury is founded
in a breach of an obligation. A PART M

continuing wrong arises where there is an 316

obligation imposed by law, agreement
Hence, in evaluating whether there is a continuing
or otherwise to continue to act or to desist from wrong within the meaning of
acting in a particular manner. The
Section 23, the mere fact that the effect of the
breach of such an obligation extends beyond a injury caused has continued is not
single completed act or omission.
sufficient to constitute it as a continuing wrong. For
The breach is of a continuing nature, giving rise to instance, when the wrong is
a legal injury which assumes
complete as a result of the act or omission which is
the nature of a continuing wrong. For a continuing complained of, no continuing
wrong to arise, there must in
wrong arises even though the effect or damage that
the first place be a wrong which is actionable is sustained may enure in
because in the absence of a wrong,
the future. What makes a wrong, a wrong of a
there can be no continuing wrong. It is when there continuing nature is the breach of
is a wrong that a further line of
a duty which has not ceased but which continues to
enquiry of whether there is a continuing wrong subsist. The breach of such
would arise. Without a wrong
a duty creates a continuing wrong and hence a
there cannot be a continuing wrong. A wrong defence to a plea of limitation.
postulates a breach of an obligation
268. In the present case, there are several
imposed on an individual, where positive or difficulties in accepting the
negative, to act or desist from acting
submission of Nirmohi Akhara that there was a
in a particular manner. The obligation on one continuing wrong. First and
individual finds a corresponding
foremost, the purpose and object of the order of the
reflection of a right which inheres in another. A Magistrate under Section
continuing wrong postulates a
145 is to prevent a breach of peace by securing
breach of a continuing duty or a breach of an possession, as the Magistrate
obligation which is of a continuing
finds, on the date of the order. The Magistrate does
nature. This indeed was the basis on which the not adjudicate upon rights
three judge Bench in Maya Rani
nor does the proceeding culminate into a decision
Punj approved the statement in a decision of the on a question of title. The
Calcutta High Court in the

184
order of the Magistrate is subordinate to the decree Magistrate had passed an order under Section 146
or order of a civil court. for the appointment of a

Hence, to postulate that the order of the Magistrate receiver as the court was unable to satisfy itself as
would give rise to a wrong to which of the parties was in

and consequently to a continuing wrong is possession. The respondents had filed a suit for a
inherently fallacious. Secondly, would declaration of title and

the surreptitious installation of the idols on the possession which was dismissed in default and an
night between 22 and 23 application to set aside the

December 1949 create a right in favour of Nirmohi order under Order IX of Rule 9 of the CPC was
Akhara? Nirmohi Akhara also dismissed. An appeal from

denies the incident completely. The right which the order was also dismissed. Thereafter the
Nirmohi Akhara has to assert petitioner who was the defendant

cannot be founded on such basis and if there is no applied for possession before the Magistrate after
right, there can be no the dismissal of the suit on the

corresponding wrong which can furnish the ground that the District Munsif had determined his
foundation of a continuing wrong. rights. The Magistrate passed

There was no right inhering in Nirmohi Akhara an order holding that there was no declaration by a
which was disturbed by the order civil court as to who was

of the Magistrate. The claim of Nirmohi Akhara entitled to the suit premises and therefore the land
was in the capacity of a shebait to would continue in the

PART M possession of the receiver. It is in that context, that

the learned Judge held that
317
either party to a decision under Section 146 has to
secure management and charge of the inner file a suit for declaration of title
courtyard. Nirmohi Akhara has itself
within the period of limitation or to bring a suit for
pleaded that the cause of action for the suit arose the recovery of the profits of the
on 5 January 1950. Proceeding
land. In such a suit, the question as to who is
on the basis of this assertion, it is evident that the entitled to the profits will be decided
ouster which the Akhara
with the result that the question of title would also
asserts from its role as a shebait had taken place to be adjudicated. This would
and hence, there was no
172 AIR 1949 Madras
question of the principle of continuing wrong being 71
attracted.
PART M
269. The decision of the Madras High Court in
Ellappa Naicken v K 318

Lakshmana Naicken172 is of no assistance to the operate as res judicata for the purpose of Section
Nirmohi Akhara. That was a 146. These observations were

case where during the pendency of the proceedings made by the learned Single Judge of the Madras
under Section 145, the High Court in support of the

185
ruling that it was not as if parties were without 173 (2004) 8 SCC 724
remedy, resulting in the property 174 (2004) 2 SCC 747 175 2018 SCCOnLine SC
2196
remaining custodia legis for all time. Either party
was entitled to bring a suit for PART M

recovery of profits within limitation where the 319

question of title would be
M.5 Oral testimony of the Nirmohi witnesses
adjudicated. This decision is of no assistance to the
Nirmohi Akhara. Certain 270. Having held that Suit 3 instituted by Nirmohi
Akhara is barred by limitation,
decisions have been relied upon by Nirmohi
Akhara but these are in regard to the it does not strictly speaking become necessary for
this Court to deal with the
commencement of limitation for the enforcement
of a decree by execution. In evidence, oral and documentary. Mr Parasaran
urged, that unlike the Trial Court,
Chandi Prasad v Jagdish Prasad173, a two judge
Bench of this Court held that this Court is not required to answer all the
questions which arise in the first
an appeal under the statute is a continuation of the
suit for all intents and appeal and if limitation alone concludes the issue it
is unnecessary to deal with all
purposes. Hence, when a higher forum entertains
an appeal and passes an order the issues in contest. The Trial Court, it was urged,
has to deal with all issues
on merit, the doctrine of merger applies and there is
a merger of the decree of the since its decision is subject to appeal. Having
carefully evaluated this submission,
trial court with the order of the appellate court.
Hence, once a decree is sought to it is appropriate to scrutinize the evidence adduced
by Nirmohi Akhara and to
be enforced for the purpose of execution,
irrespective of being original or render a full adjudication, having regard to the
nature of the controversy. The
appellate, the date of the decree or any subsequent
order directing payment of evidence recorded in all the suits has been relied
upon during the hearing of the
money or delivery of property at a certain date
would be considered to be the appeals. Hence it becomes necessary to advert to
the oral evidence. Nirmohi
commencement of limitation. The same principle
has been emphasized by a Akhara has relied on the oral evidence of the
following witnesses during the
three judge Bench in Union of India v West Coast
Paper Mills Ltd.174 and in course of the hearing:

Shanti v T D Vishwanathan175. The essential issue 271. Mahant Bhaskar Das (DW 3/1): The date of
is whether their suit was the Examination-in-Chief of

within limitation and for the reasons which have the witness is 29 August 2003. He was 75 years of
been indicated, the answer to age on the date of the

that must be in the negative. deposition and claimed to be a disciple of Baba

Baldeo Das. He was the

186
Sarpanch of Shri Manch Ramanandiya Nirmohi attached on 19 December 1949;
Akhara and prior to it claimed to
(ix) After the riot of 1934, no Muslim had visited
be a Panch and pujari of the Ram Janmabhumi the disputed site to offer
temple. The witness stated that:
namaz;
(i) Nirmohi Akhara is the owner of the idols, the
disputed temple, Ram (x) No idol was taken from Ramchabutra temple on
22/23 December 1949
Janmabhumi and other temples in the vicinity for
several hundred years; and the possession of the disputed temple had all
along been with Nirmohi
(ii) The consecration of Lord Ram seated in Ram
Janmabhumi temple and Akhara;

Ramchabutra was performed by a Mahant of (xi) The servicing rights in respect of the main
Nirmohi Akhara; temple had been with Nirmohi

PART M Akhara until 29 December 1949. Nirmohi Akhara

had been performing
320
worship of Lord Ram and other idols in the outer
(iii) This information was passed down to disciples premises till the second
from their old preceptors
attachment in February 1982; and
from generation to generation;
PART M
(iv) That he was performing worship and aarti in
the Ramchabutra temple from 321

1946-1949; (xii) Lord Ram was seated in the inner part even
prior to 1934, which was in
(v) Both the inner and outer courtyards have
always been in the possession of continuous possession of Nirmohi Akhara since
then.
Nirmohi Akhara, there was a sanctum sanctorum in
the inner part of which Dr Dhavan, learned Senior Counsel appearing on
behalf of the Sunni Central
the attachment was made;
Waqf Board, has pointed out the following
(vi) The entire outer part was in possession of contradictions in the evidence of the
Nirmohi Akhara since time
witness:
immemorial;
(i) While the witness stated that there was no
(vii) No incident took place during the night of incident on 22/23 December
22/23 December 1949, when he
1949, and that he was sleeping below the northern
was asleep below the northern dome of the dome of the disputed
disputed structure;
structure, the High Court has recorded the
(viii) Aarti and worship of Lord Ram was being statement of Counsel for
conducted in the sanctum
Nirmohi Akhara to the effect that the idols were
sanctorum even prior to 29 December 1949 and the shifted from Ramchabutra
inner temple was

187
and kept under the central dome of the disputed demolition of the temple was what he heard from
building; and his ancestors and was not read

(ii) The witness initially stated that there were two by him anywhere. According to the witness,
idols of Ram Lalla in the worship in the mosque had been

disputed building; one on the throne and one on the continuing by the Hindus before 1934. According
stairs but he to him, the idols had been

subsequently clarified that by two idols he meant installed prior to 1934 but he was unaware by
one of Ram Lalla and whom they were installed. The

another of Lakshman. Moreover, the witness witness then stated:

claims that he had himself
―I had heard it from my ancestors that the idols
performed Aarti of Lord Ram inside the disputed existed over there from before the year 1934. I will
site prior to its attachment also not be able to tell how many years after the
construction of the three domed disputed structure
on 29 December 1949 in spite of which he was not i.e. after the year 1528, were the idols installed in
able to make any the disputed structure.‖

statement in regard to the number of idols inside According to the witness, in 1946, the gates of the
the disputed structure. grill-brick wall were opened for

Moreover, while on the one hand, the witness devotees and the temple used to remain open. He
stated that the parikrama stated that namaz was not

was at the back of the disputed structure later on he offered in the disputed structure till December
stated that parikrama 1949. As regards the incident on

was being performed around Ramchabutra. 22/23 December 1949, the witness has the
following explanation:
272. The testimony of the witness on certain other
aspects also merits scrutiny. ―No incident occurred in the disputed structure in
the night of 22/23 December, 1949. If somebody
The witness stated that Babri Masjid was built in
claims that some incidents occurred in the disputed
1528 by demolishing the Ram
structure in the night of 22/23 December, 1949,
Janmabhumi temple. Then he stated that: then he is stating wrongly. In the night of 22/23
December, 1949 I was present in the disputed
PART M premises. I go to bed at 11.30 PM and get up at
4.30 AM. I must have slept so in that night i.e. in
322 the night of 22/23 December, 1949. At that time i.e.
in that night, I had slept at the place beneath the
―Since the buildings built by Vikramaditya were
dome.‖
2500 years old, they collapsed on their own and the
Janmbhumi temple was demolished in the year The ignorance which the witness feigns of the
1528. The building which was demolished in the incident is evident. The deposition
year 1528, was originally built by Vikramaditya.‖
of the witness assumes importance because he was
The witness stated that the building of a Ram the Panch of Nirmohi
Janmabhumi temple by
PART M
Vikramaditya and the construction of the disputed
structure in 1528 upon the 323

188
Akhara since 1950 and was at the material time the statement that the idols of Ram Lalla have been
Sarpanch. His evidence has placed in the disputed structure

several contradictions. He stated: much prior to 1934 is unworthy of credence.

―This throne existed in the disputed structure from PART M

before the year 1950. This throne was present in
the disputed structure, from ten years before the 324
year 1950. This throne was in the disputed structure
273. Raja Ram Pandey (DW 3/2): The date of the
in the year 1950, but it had not been attached."
Examination-in-Chief of the

witness is 22 September 2003. The witness stated

On the other hand, the witness stated: that he was 87 years old at
―Before 1986, the throne, visible in these the time of deposition and that he had come to
photographs, did not exist at the disputed site. This Ayodhya in 1930 since when he
throne may have been placed in the disputed
building after its lock was opened in 1986.‖ claimed to have been visited the Ram Janmabhumi
temple. The witness stated
The witness then admitted that he had referred to
two idols of Lord Ram when that:

there was only one idol of Lord Ram and one of (i) He had seen the Nirmohi Akhara Aarti prior to
Lakshman. As regards the idols the attachment of the inner

at Ramchabutra, the witness stated that they were courtyard;

installed during Akbar‘s reign.
(ii) The duty of opening and closing the gates of
While on the one hand, the witness stated that the outer courtyard was
namaz had never been offered in
performed by Nirmohi Akhara;
the mosque since the days of Babur, on the other
hand, when he deposed about (iii) No Muslims were allowed to enter from the
outer gate between 1930-1949
the idol of Ram Lalla in the disputed structure, he
stated that it was prior to 1934 and he was able to view the inner part of the
sanctum sanctorum where
but the exact date and period was not known to
him. According to the witness, some idols had been engraved; and

the idol of Ram Lalla seated on the throne was a (iv) Ever since his arrival until the date of
chal – vigrah or moveable idol. attachment, the premises have never

Much of the evidence of the witness is hearsay in been used as a mosque.

nature. His statements are
Dr Dhavan has during the course of his
based on what has been communicated to him by submissions emphasized the following
others. The explanation of the
aspects of the cross-examination:
witness that he was asleep in the disputed premises
(i) The witness has accepted that earlier the
on 22/23 December 1949
Chabutra was known as
and that no incident had taken place is a figment of
Janmabhumi temple;
his imagination. The
(ii) The witness was unaware as to when the
disputed structure with three

189
domes was built and who had got it built; he had no 1930, 73 years earlier when he visited the disputed
knowledge as to when structure for darshan.

and who had installed the idols inside the disputed According to him, his father had stated that the
structure; and pillars contained images of Lord

(iii) The witness was unaware as to when and by Hanuman.

whom Nirmohi Akhara was
274. Satya Narain Tripathi (DW 3/3): The
made the owner of Ram Janmabhumi temple. Examination-in-Chief of the witness

PART M was on 30 October 2003 when he was 72 years old.

The witness stated that he
325
had first visited the Ram Janmabhumi temple in
The witness stated during the course of his 1941 when he was ten years old
examination that he was hearing of
and had been continuously visiting since then. The
the Babri mosque since 1949 but he was unaware witness stated that no namaz
where in Ayodhya it is or was
was offered at the disputed site nor had any
situated. He stated that he came to know later from Muslims offered prayer. Though, the
the cross-examination that
PART M
the building which he called the Ram Janmabhumi
temple is called the Babri 326

mosque by Muslims. Though, he stated he had held witness stated that he has been continuously
meetings with Muslims in visiting the disputed structure, when

1992-93, he stated he was not informed by any of asked about the physical features, he stated that he
them that the mosque has never saw any part of the

been demolished on 6 December 1992. On his own disputed structure with much attention.
ability to recall events, the
The witness expressed ignorance about whether
witness stated: certain individuals had entered

―I have grown 87 years old and my discretion the mosque and placed idols on the night of 23
does not work in a proper manner. For this reason, December 1949. The High Court
I fail to remember which particular thing I stated at
a particular time. Of the aforesaid statements, the has noted that most of the statements of this
above mentioned statement given by me today is witness are on assumption and
correct; I have wrongly given the statement dated
hearsay. While on the one hand, he referred to the
30.09.2003.‖
idols which were placed on
The witness deposed that he had no knowledge of
the sinhasan in the disputed structure which
who had installed the idols in
remained there from 1941-1992, he
the three domed disputed structure but claimed to
later retracted the statement when shown the
have been seeing them ever
photographs and stated that it was
since he was visiting it. While on the one hand, the
not clear to him when he used to visit and in what
witness admitted to the
manner the idols were kept.
weakness of his memory, he purported to depose to
what had taken place in

190
275. Mahant Shiv Saran Das (DW 3/4): The towards the disputed site and if I at all went there I
witness was examined on 14 returned from outside after saluting the place with
folded hands.‖
November 2003. He was 83 years old. He stated
that he had been going for The witness stated that he was a priest at the
disputed structure which he must
darshan to Shri Ram Janmabhumi since 1933 and
had darshan of Lord Ram have visited several hundred times. However, he
did not remember the year in
inside the sanctum sanctorum until attachment in
1949. which he was a priest. During the course of his
cross-examination, the witness
Dr Dhavan, learned Senior Counsel appearing for
the Sunni Central Waqf Board, stated that he was a priest at the three domed
structure for ―2-4 years‖ but later
has emphasized the following aspects of the
testimony of this witness: admitted that his statement was wrong:

(i) The witness submitted that he had read his ―Question: As per the aforesaid statement of your
affidavit of evidence only own, you have been at Ayodhya continuously for
only 5-6 months between 1931 and 1957. Is it true?
cursorily and had not read it completely; Answer: Yes, Sir. It is true. Question: Then I have
to say that your statement dated 5th February, 2004
(ii) Though the witness stated that when he visited
– mentioned on page 74 and reading as 'You
the disputed site in 1936,
served as a priest at the three domed disputed
there were no walls or iron-bars, it is relevant to building for 24 years' – goes wrong. What have you
note that grill-brick wall to say in this respect? Answer: Going through the
aforesaid the witness stated – this statement of
was placed in 1856-57 to separate the inner and the mine has gone wrong.‖
outer courtyards; and
Later, he admitted that his statement in the
(iii) Though, in the course of his Examination-in- Examination-in-Chief that he was
Chief, the witness stated that
going for darshan to the Ram Janmabhumi since
he had taken darshan of the inner sanctum 1933 contained a wrong
sanctorum until its attachment
reference to the year. Moreover, the witness
PART M accepted that he did not remember

327 whether or not he had visited the disputed building

before February 1986. The
in 1949, during his cross-examination he stated that
he had not visited the witness also stated that he had wrongly made a
reference to his residing in
disputed building before 1986. On the above basis,
it is urged that as a Ayodhya continuously from 1930-42.

matter of fact, the witness has not visited the PART M

disputed site at the material
328
time.
276. Raghunath Prasad Pandey (DW 3/5): The
On his residence in Ayodhya, the witness stated: Examination-in-Chief of the

―I did not reside at Ayodhya from 1938 to 1950 witness is dated 18 November 2003. The witness
but whenever I came to Ayodhya I did not go was 73 years old when he

191
deposed. According to him, the Ram Janmabhumi constructed. Though, he attributed this information
temple is about 16 or 17 to the Ayodhya Mahatmya,

kilometres from his village and he has visited it PART M

since the age of 7.
329
277. The following aspects of the cross-
examination have been emphasized by counsel for Nirmohi Akhara conceded before the
High Court that the document
Dr Dhavan:
does not mention that the building was constructed
(i) The witness had no knowledge of whether the by Vikramaditya and was
pictures were of the west
demolished after which the disputed structure was
side wall or the lower portion of the middle dome constructed. Though, the
of the disputed building
witness had served in the Indian Railways from
because he had gone for darshan and had not paid 1948-1988, he claimed to have
careful attention to the
heard the name of Babri mosque for the first time
walls; on 18 November 2003.

(ii) Though, he had seen the grill-brick wall, he did 278. Sri Sita Ram Yadav (DW 3/6): The date of the
not remember if one had to Examination-in-Chief of the

pass through the barricades to enter the disputed witness is 6 January 2004. The witness stated that
structure; and he was born in 1943 and that

(iii) Though the witness claimed to have visited he attained the age of understanding in 1951 when
Ayodhya with his mother from he was 8 years of age. The

1937-1948, and that the idols of Lord Ram Lalla statements of this witness were therefore not
were inside the building relevant to the controversy since his

under the central dome, he subsequently factual knowledge pertains to the period after 1951.
contradicted himself when This witness was born in

confronted with various photographs. 1943 and had no personal knowledge of the facts
up to December 1949. The
The High Court has noted that most of his
statements travelled into antiquity and evidence of the witness was hearsay in nature.

were inadmissible since he had no personal 279. Mahant Ramji Das (DW 3/7): The following
knowledge of the facts. When aspects of the testimony have

questioned about the source of his knowledge, he been emphasized by Dr Dhavan:

stated that he had heard
(i) The witness accepted that the disputed building
stories from his teachers. Initially, the witness was built by Emperor
stated that the three domed
Babur but he stated that it was constructed as Sita
structure was constructed by Vikramaditya. He Pak but not as a
then stated that the building
mosque, which is contrary to the stand of Nirmohi
constructed by Vikramaditya was demolished and Akhara in its written
the disputed building was
statement;

192
(ii) According to the witness, the disputed temple and instead prayer-worship was regularly carried
was constructed after the out over there in the later days. As per my
knowledge, which is based on hearsay, the Jumma
demolition of Janmasthan Mandir by Emperor namaz was offered at the disputed structure from
Babur by way of Goodar the times of Akbar till the year 1934. Namaz was
not offered on other days.‖
Baba (which is not the pleaded case of any of the
Hindu Parties); and Eventually, the witness stated that he had not read
his affidavit by way of
PART M
Examination-in-Chief at the time of signing it and
330
had read it in the court room.
(iii) Babur got ‗Sita Pak‘ written on the disputed
280. Pt Shyam Sundar Mishra (DW 3/8): He was
building because he was
born in 1914 and stated that
unable to construct the mosque because Hanumanji
Ram Janmabhumi is situated at a distance of less
would demolish the
than 400 yards from his house.
structure whenever an attempt was made to build a
PART M
mosque.
331
As to his own personal knowledge, the witness
stated: He was 90 years old at the time of deposing.

―I cannot definitely tell as to on how many 281. The following aspects of the testimony of the
occasions had I gone to Ayodhya between the years witness have been
1934 to 1948. I do not remember as to what was
my age, when I visited Ayodhya between the years emphasised by Dr Dhavan:
1934 to 1948. When I had gone along with my
father. I do not remember as to when did I first go (i) The statement of the witness that the central
to Ayodhya after the year 1934, but when I first dome is swayambhu is
went to Ayodhya after the year 1934, I stayed for
against the pleaded case of Nirmohi Akhara;
3-4 days.‖
(ii) According to the witness, in 1992 the dome of
Contrary to the stand of the Nirmohi Akhara, he
the janmasthan temple
stated that the disputed structure
came down due to its antiquity and due to lack of
was built by Babur, though in the shape of Sita
proper maintenance; and
Pak:
(iii) While deposing, the witness seems to
―The disputed structure, which was demolished
distinguish between Ramchabutra
on 6th December, 1992, was built by Babar in the
shape of 'Sita Pak', (and) not in shape of mosque... temple and the ―three dome temple‖ and stated
In the period of Akbar, Muslims had the permission that it was the
to offer Jumma namaz in the disputed structure and
for the remaining period, Hindus were permitted to Ramchabutra temple which was in the ownership
carry out prayer-worship. It is not found in of Nirmohi Akhara and
literature or history as to whether in the period
between Babar to Akbar, namaz was offered by remained silent about the management and
Muslims in the disputed structure or not, or ownership of the ―three domed
whether the prayer-worship of Lord Rama was
temple‖.
carried out or not. To the best of my knowledge
and as told to me, namaz was never offered in the The witness stated that he had no knowledge about
disputed structure after the riot of the year 1934 the observance or non

193
observance of worship at the disputed site before Though, the affidavit was prepared merely ten
he attained the age of 14 months earlier, the witness was

years. unable to recollect anything from the document. He

was unaware of the history of
282. Sri Ram Ashrey Yadav (DW 3/9): The
Examination-in-Chief of the Nirmohi Akhara and had no knowledge whether
the disputed shrine was
witness was recorded on 22 March 2004 when he
was 72 years of age. He attached. This witness stated that he was unaware
of the contents of his affidavit
claims to reside in close proximity to the Ram
Janmabhumi temple. by way of Examination-in-Chief:

283. Dr Dhavan has submitted that this witness is ―Today, I have filed an affidavit in this Court. I
completely unaware of what was not able to read on my own as to what was
written in the affidavit filed by me. This affidavit
is stated in his Examination-in-Chief, which needs was read out to me by the 'Munshi' (advocate
to be completely disregarded clerk), but I do not remember his name. I had only
put my signature on the affidavit after hearing the
for the following reasons:
same, but I do not know about its contents. This
PART M affidavit ran into three or four pages.‖

332 PART M

(i) In the course of his cross-examination, the 333

witness admitted that while he
Later, he stated that his mind was not functioning
had no knowledge of what was written in his properly for eight to ten months
affidavit, he cannot recollect
and his memory had become weak. He stated:
what exactly was written though it was read out to
―I do not recollect whether the facts mentioned in
him;
this paragraph, had been got incorporated by me or
(ii) The answers which he has furnished maybe not. … In second and third line of this paragraph, I
right or wrong and that his have mentioned that 'the placement of idols in the
'Garbh-grih' portion on 22-23 December, is totally
memory had been affected; wrong'. I do not remember whether this fact is
related to the incident of 1949 or not. In this very
(iii) He was unaware whether the main affidavit paragraph, I have also mentioned that 'few local
was typed in Faizabad or Muslims. … got the forged action taken'. I do not
recollect as to in which behalf, was this forged
Lucknow;
action. Stated on his own that I cannot tell whether
(iv) He had visited the sanctum sanctorum for the forged action mentioned by me was related to
darshan even before 22/23 the incident of year 1934 or not.‖

December 1949 and the statement that an idol was 284. Sri Pateshwari Dutt Pandey (DW 3/10): The
placed on those dates Examination-in-Chief of the

was untrue; and witness is dated 23 March 2004. The witness who
was 74 years of age stated
(v) The witness was unaware whether the dates
22/23 December pertained to that he was the local commissioner who performed
a site survey in relation to
the year 1949 or not.

194
another case (Nirmohi Akhara v Ram Lakhan two sides… In this behalf, I cannot give any reason
Sharan Das – Suit 9 of 1973). for making wrong statement. I forget few facts due
to which such statements are made. By forgetting, I
Dr Dhavan has adverted to the following points in mean that I do not remember those facts at that
regard to the testimony to the time.‖

witness: 286. Sri Ram Akshaibar Pandey (DW 3/12): The

Examination-in-Chief was
(i) Though, his report marks the existence of a
Mandir at the disputed site, he recorded on 25 May 2004. The witness who was 70
years of age stated that he
accepted that the word ‗Mandir‘ had been inserted
by him at the behest of was visiting the Ram Janmabhumi temple since the
age of 12.
certain other persons. He did not know whether the
place was Babri Masjid The following aspects of the testimony of the
witness are significant:
or otherwise and stated that he had written what
was informed to him by (i) The witness admitted that his information about
the disputed structure had
others; and
been gathered from his grandfather;
(ii) Consequently, the report of the witness cannot
be relied upon to establish (ii) Though, in his Examination-in-Chief, he stated
that he used to do the
that the disputed structure was a temple as he
marked it as a temple only parikrama, in the course of his cross-examination,
he stated that he had
on the suggestion of others.
never seen the three domes from behind the
PART M
structure;
334
(iii) The witness stated that he had not performed
These admissions of the witness cast serious doubt the parikrama of the Ram
on his credibility.
Janmabhumi but of Ramchabutra;
285. Sri Bhanu Pratap Singh (DW 3/11): The
PART M
Examination-in-Chief of this
335
witness was recorded on 28 April 2004 when he
was 70 years of age. He claimed (iv) According to the witness, he was informed by
the villagers that the Ram
to be visiting the Ram Janmabhumi temple since
the age of 10. The witness Janmabhumi in which Ram Lalla was present had
collapsed as it was old;
stated that his memory is weak. He was unable to
state whether any other temple and

apart from the Ram Janmabhumi temple is related (v) The witness stated that he neither read nor
to Nirmohi Akhara. When heard about who had

confronted with his Examination-in-Chief, he constructed the disputed structure with three
stated: domes. The witness

―The portion ‗temples all around‘ of my above eventually accepted the weakness of his own
statement, is wrong because temples were only on memory rendering him

195
unreliable. 288. Jagad Guru Ramanandacharya Swami
Haryacharya (DW 3/14): The
287. Mahant Ram Subhag Shashtri (DW 3/13): The
Examination-in-Chief was Examination-in-Chief was recorded on 23 July
2004 when the witness was 69
recorded on 25 May 2004. The witness was 86
years of age and stated that he years old. He was the head of Ramanand
Sampradaya since 1985-86. He came
had come to Ayodhya in 1933 and his guru was
connected to Nirmohi Akhara. to Ayodhya in 1949 at the age of 10. According to
him, he had seen the idol of
The following aspects of the testimony of witness
are relevant: Ram Lalla inside the disputed structure under the
central dome as well as outside
(i) The witness stated that there was a disturbance
on the night of 22/23 at Ramchabutra. The witness deposed when he first
had darshan from a distance
December 1949 in the disputed structure and
though he was not aware of 15 feet, it was not from under the dome but from
the courtyard. The witness
about the arrangements which were made on that
night, it transpired that had no information whether namaz was offered in
the disputed structure before
new idols were installed;
he came to Ayodhya. The witness did not rule out
(ii) As regards the construction of the mosque, the the possibility that the idols
witness stated:
were placed inside the disputed structure in 1949,
―Babar had built the mosque by demolishing the when he stated:
structure of temple, but he was unable to make it a
mosque completely. 14 pillars were fixed in this ―It is possible that in the dispute that occurred in
structure, which had idols engraved over them, and 1949 and in the incident in which idol had been
as such it became a place of idol.‖ placed in the disputed building, the local Hindus of
Ayodhya had no role; rather, outsider ascetic saints
(iii) The witness stated that possibly facts were responsible for the same.‖
pertaining to the period after 1933
289. Narendra Bahadur Singh (DW 3/15): The
34 had vanished from his memory. The statement Examination-in-Chief was
of the witness that the
recorded on 17 August 2004. The witness was 72
idols were installed in the disputed structure on the years of age. According to him,
night of 22/23
when he was 11 years old, he went to Ram
December 1949 is contrary to the case of Nirmohi Janmabhumi with his parents and
Akhara. According to
saw the idol of Ram Lalla seated under the central
Nirmohi Akhara, there never existed any mosque at dome. He claimed that since
the disputed site and
the age of 15, he was going alone to the temple
PART M until demolition.

336 PART M

all along there was a temple which was in its 337

management, and that no
Dr Dhavan has adverted to the following points in
incident had taken place on 22/23 December 1949. regard to the testimony of the

196
witness: spoke about darshan in the three domed structure
where the idol existed but
(i) The witness needs to be completely disregarded
for having furnished stated that circumambulation was performed inside
the grill-brick wall. According
varied time periods of when he commenced visiting
the disputed site. to him there was no place called Sita Rasoi in the
disputed premises. The
Though, he stated in his Examination-in-Chief that
he first visited at the PART M

age of 11, in his cross-examination, he stated that 338

he had seen the
witness also stated that when he had first gone to
Nirmohis managing the disputed structure since the the three domed structure, he
age of 5-6 years and
had not been exactly under the central dome and
8-9 years; that he had taken darshan from

(ii) Regarding his statement that he had never seen the gate in the front of the lower side of the dome.
any namaz at the
291. Sri Mata Badal Tewari (DW 3/17): The
disputed site, he stated that he was not there at the witness was 84 years of age on
site and hence could
the date of his Examination-in-Chief dated 31
not see whether namaz was being conducted; and August 2004. He claimed that he

(iii) The witness denied the existence of the had visited the Ram Janmabhumi temple for the
Janmasthan Mandir on the north first time in 1935 at the age of 15

side which has been accepted by Nirmohi Akhara and has visited Ayodhya since then. The witness
in its replication. had no knowledge about the

290. Shiv Bhikh Singh (DW 3/16): The witness Babri Masjid at Ayodhya or where it is situated. He
was 79 years of age on the however stated that he heard

date on which his affidavit, by way of of the mosque. The lack of awareness of this
Examination-in-Chief, dated 24 August witness about the mosque is

2004 was sworn. He claimed that he had been contradicted by his account of the riots of 1934:
visiting Ram Janmabhumi temple
―I have mentioned about the riot of Ayodhya.
since the age of 12 and had seen the idol of Lord This riot occurred in the year 1934. Some part of
Ram under the central dome. the disputed structure had been damaged at that
time. Those domes were damaged by many people.
The witness stated that the idol of Ram Lalla was The damagers were followers of Hindu religion.‖
situated in the Ram
If, according to the witness, the persons who
Janmabhumi temple and there were three caves. He damaged the domes in 1934 were
denied that the idols were
Hindus by religion, it is impossible to accept his
placed in the disputed structure on 23 December lack of awareness about the
1949. According to him, the
existence of the mosque.
idols existed at the disputed structure even before
his forefathers. The witness 292. Sri Acharya Mahant Bansidhar Das (DW
3/18): The witness who was

197
born in 1905, stated that he had come to Ayodhya (d) Mir Baki destroyed the Ram temple but did not
in 1930. He was 99 years of construct the Masjid,

age on the date of his Examination-in-Chief on 15 the temple was reconstructed by Govind Das who
September 2004. He stated was the Mahant

that he was continuously visiting the disputed of Nirmohi Akhara during the regime of Babur;
structure and worshipping idols in
(e) Govind Das Ji constructed the building with
the inner courtyard. The following aspects of the three domes;
testimony of this witness need to
(f) Some part of the temple was constructed during
be noted: the regime of Babur

PART M which was destroyed during the regime of

Humayun but was
339
reconstructed by Govind Das Ji; and
(i) The witness deposed that Ramchabutra is also
called Bedi and the word (g) Anantananda, disciple of Ramanand,
reconstructed the temple at
can be used for a small or large Chabutra;
the disputed site.
(ii) The witness stated that there is no harm in
telling a lie if there is a religious PART M

place and if someone is acquiring it through wrong 340

means or forcibly
293. Sri Ram Milan Singh (DW 3/19): The witness
occupying it; was 75 years of age on 17

(iii) The witness admitted that his memory was not August 2004 when his Examination-in-Chief was
good due to age; recorded. He sought to prove

(iv) The witness had given testimony in about two the existence of idols under the central dome in the
hundred suits. The witness inner courtyard and on the

had varied theories about the construction of the Ramchabutra, stating that he had been visiting
temple contrary to the since 1940 till 1951 and

pleaded case of the litigating Hindu parties: occasionally after 1952. When questioned about his
affidavit, he stated:
(a) According to him, the repairs of the Ram
Janmabhumi was carried ―The person having prepared this affidavit, can
only tell about this. I had not completely read the
by Nirmohi Akhara during the last 700 years; affidavit of examination-inchief before signing it…
I had put my signature on the affidavit at the High
(b) The temple of Kasauti black stones was
Court, Lucknow. I cannot tell whether this affidavit
constructed by Nirmohi
had been typed out at Lucknow or not. At the time
Akhara; when the draft of this affidavit of mine had been
prepared, I was at the place of my counsel in
(c) The temple said to be made during the time of Ayodhya. He had told that ‗I am preparing the
Vikramaditya was draft of your affidavit‘. I had not seen the contents
of the draft of the affidavit, after it was prepared.‖
constructed by the King of Kannuz and not by the
King of Ayodhya;

198
The above admission renders his evidence support of the Nirmohi Akhara indicates that their
untrustworthy and not deserving of statements are replete with

credence. hearsay. Witnesses who claimed to have visited the

disputed site on numerous
294. Mahant Raja Ramchanbdr-Acharya (DW
3/20): The witness was 76 occasions were unable to record its physical
features. Though, the witnesses
years old on the date of the Examination-in-Chief
on 27 October 2004. He was a have purported to state that no incident had taken
place on 22/23 December
pupil of Mahant Raghunath Das, the second
plaintiff in Suit 3. The witness stated 1949 and one of them feigned ignorance on the
ground that he was sleeping
that in 1943, when he first came to Ayodhya, the
Babri Masjid did not exist and inside the disputed structure at the time, it is
impossible to accept this as a
that the disputed building is not a mosque:
credible or trustworthy account. The statements of
―In 1943, when I first came to Ayodhya, the Babri the witnesses are replete with
mosque was not at all existing there. There was no
mosque on the disputed site in 1943, because there inconsistencies and contradictions. The witnesses
used to be worship of idols over there. I have heard were unclear about the nature
the name of the Babri mosque. The disputed
building is the Babri mosque. (Again stated) It is of the parikrama route and the number of idols.
not the Babri mosque; it is a temple. The disputed While furnishing a description of
building has three domes. It is not a mosque. It is
the idols inside the disputed structure, many
the birthplace of Lord Rama. In 1943, when I first
witnesses acknowledged that they
visited Ayodhya I did not see the Babri mosque at
all. I never saw namaz being offered in the disputed had not entered the disputed structure. Many of the
building. I have seen Pooja being performed there. witnesses had not read their
(Stated on his own) No question arises of offering
namaz at a place where Pooja is performed. In affidavits in lieu of the Examination-in-Chief and
1943, when I had merely appended their

PART M signatures without understanding the contents.

Many of the witnesses have not
341
been able to confirm their assertions in the
first visited Ayodhya, I saw a temple, not a Examination-in-Chief and have in fact
mosque, on the disputed site. (Stated on his own)
There used to be PoojaSewa (offering worship and contradicted their own statements. Many of the
rendering service) over there. Three domes were witnesses offered accounts with
built in the disputed building.‖
respect to the disputed structure which are at
According to the witness, namaz was not offered at variance with the pleaded case of
the disputed building from
Nirmohi Akhara. Some of the witnesses in fact
1943 to 1950 and puja was being performed; and supported the case in Suit 4 that
the sanctum sanctorum was
PART M
situated beneath the three domed structure of the
disputed building. 342

295. The above account of the oral evidence of the Babri Masjid existed where prayers had been
witnesses who deposed in conducted. Consequently, the

199
witness accounts cannot be regarded as credible PART M
proof in support of the case of
343
Nirmohi Akhara.
―799…Nirmohi Akhara, plaintiff no. 1 is a
M.6 Nirmohi Akhara‘s claim to possession of the Panchayati Math of Ramanandi Sect of Bairagies
inner courtyard and as such is a religious denomination following
its religious faith and pursuit according to its own
296. The claim of Nirmohi Akhara in Suit 3 is in custom. We however further hold that its
respect of the inner courtyard, continuance in Ayodhya find sometimes (sic) after
1734 AD and not earlier thereto.‖
including the three domed structure of the mosque.
Nirmohi Akhara denies the Justice D V Sharma placed reliance on the
evidence of Mahant Bhaskar Das
incident of 22/23 December 1949 during the course
of which the idols were (DW 3/1) and Raja Ramachandracharya (DW 3/20)
to hold that:
surreptitiously installed into the disputed structure.
According to Nirmohi Akhara, ―Nirmohi Akhara is a Panchayati of Ramanandi
sect of Bairagies and as such is religious
the structure is a temple and not a mosque. The oral
denomination. The custom has already been
evidence which has been
registered in the year 1949.‖
adduced to support this submission has been
298. These findings do not establish Nirmohis
analysed earlier. The oral evidence
being in possession of the inner
does not indicate any cogent, credible or
courtyard. While scrutinizing the documentary
trustworthy account of Nirmohi Akhara
evidence which has been relied
being in possession of the inner courtyard or
upon by them, a distinction must be drawn between
structure. With this state of the
a mere presence of Nirmohi
record in regard to the oral accounts of the
Akhara at Ayodhya or around the disputed site and
witnesses produced by Nirmohi
actual possession of the
Akhara, it becomes necessary to scrutinise whether
disputed structure. Mr S K Jain in that context
the documentary evidence
adverted to the account of
supports the case of Nirmohi Akhara being in
Tieffenthaler of 1770 which refers to the presence
possession of the inner courtyard
of the Bedi or cradle
and structure.
symbolizing the place of birth of Lord Ram. The
297. Mr S K Jain, learned Senior Counsel reference to the cradle in
appearing on behalf of the plaintiffs in
Tieffenthaler‘s account cannot be regarded as
Suit 3, emphasized the findings contained in the indicative of the Nirmohi Akhara
judgments of Justice Sudhir
being in possession of the disputed structure or
Agarwal and Justice D V Sharma that Nirmohi inner courtyard of the mosque.
Akhara had a presence at
Sri Acharya Mahant Bansidhar Das alias Uriya
Ayodhya from 1734 after Mahant Govind Das left Baba (DW 3/18), who was a
Jaipur to come to Ayodhya.
witness for Nirmohi Akhara stated that
Justice Sudhir Agarwal observed, while deciding Ramchabutra is also called Bedi. The
issue 17 in Suit 3 that:

200
statement of this witness to the effect that the Raghubar Das on 8 November 1882 seeking rent
Bedi / cradle was at Ramchabutra for the use of the

cannot be taken out of context and has to be read in Chabutra;

the light of the entirety of the
(xi) The order of the Sub-Judge, Faizabad dated 18
evidence, including Tieffenthaler‘s observations on June 1883 dismissing the
what he had noticed. Among
suit;
the other documents, which have been relied upon
are: (xii) The application filed by Syed Mohd Asghar
on 2 November 1883 for
(i) ―East India Gazetteer of Hindustan‖ by Walter
Hamilton; permission to carry out repairs of the mosque;

PART M (xiii) The order of the Deputy Commissioner dated

12 January 1884;
344
(xiv) The order of the Assistant Commissioner
(ii) Edward Thornton‘s ―The Gazetteer of the dated 22 January 1884; and
Territories under the
PART M
Government of East India Company‖;
345
(iii) The complaint of 25 September 1866 by Meer
Rajab Ali Khateeb regarding (xv) The complaint by Mahant Raghubar Das dated
27 June 1884 seeking spot
the ―Kothri‖ constructed by certain Bairagis inside
the compound of the inspection in view of the work being carried out by
Syed Mohd Asghar for
mosque;
white washing the walls of the mosque.
(iv) Carnegie‘s ―Historical Sketch of Faizabad‖;
299. These documents have been analysed in the
(v) Permission granted to Mahant Khem Das on 13 judgment of Justice Sudhir
April 1877 for the
Agarwal who observed that the idol existed at
construction of a new gate on the northern side; Ramchabutra and Nirmohi Akhara

(vi) The appeal filed on 13 December 1877 against was likely looking after the worship of the idol,
the grant of permission for which was not seriously disputed

the new gate; by the other Hindu parties. However, Justice

Agarwal observed that there was no
(vii) The report made by the Deputy Commissioner
in view of the above appeal; basis to hold that Nirmohi Akhara continued to do
so even after the idols were
(viii) The order of the Commissioner dated 13
December 1877 dismissing the shifted inside the structure on 22/23 December
1949. This finding was because
appeal;
Nirmohi Akhara plainly denied that any incident
(ix) Gazetteer of the Province of Oudh (1877-78); had taken place on 22/23

(x) The plaint in the suit instituted by Syed Mohd December 1949 and they had no cogent
Asghar against Mahant explanation to offer of the events which

201
took place on the intervening night. A careful 1886 deleted the observations on the ownership of
scrutiny of the documents which the Chabutra made in favour

have been relied upon by Nirmohi Akhara does not of Mahant Raghubar Das. Mr S K Jain, in his
lead to the inference that written submissions has fairly

Nirmohi Akhara had exclusive possession of the accepted that the events arising out of the Suit of
disputed structure. We must 1885 have been relied upon to

bear in mind the submission of Mr S K Jain that the show the presence of Mahant Raghubar Das at the
disputed structure of the Ramchabutra in the outer

mosque was landlocked and that the outer courtyard. Besides this, the Nirmohis have been
courtyard which included ambivalent about the Suit of

Ramchabutra, Sita Rasoi and the Bhandar had to be 1885 indicating unawareness about it at one stage
traversed in order to gain and then adopting an

entry to the mosque. There were two gates to the inconsistent position at other times.
outer courtyard namely Singh
301. The next set of documents relied on by
Dwar and Hanumat Dwar. But, would the Nirmohi Akhara commence from
landlocked character of the disputed
1900. These documents are set out below:
structure lead ipso facto of the conclusion that
Nirmohi Akhara was in possession (i) Agreement permitting Jhingoo to provide
drinking water to pilgrims176;
of the inner structure? It is not possible to draw that
inference on a (ii) H R Nevill‘s ―The Gazetteer of the United
Provinces of Agra and Oudh
preponderance of probabilities.
1905‖ stating that the Nirmohi Akhara sect
PART M formerly held the Ram

346 Janmabhumi temple in Ramkot, the remains of

which still belong to them;
300. In 1885, a suit was instituted by Mahant
Raghubar Das seeking permission (iii) Mutation entry in favour of the Mahant
Raghunath Das177;
for the construction of the temple on the Chabutra.
The Sub-Judge at Faizabad in (iv) Agreement of Theka shop dated 13 October
1942178;
his judgment dated 24 December 1985 observed
that though the area occupied 176 Exhibit 8 177
Exhibit 49
by the Chabutra was in the possession and
ownership of the plaintiff, permission PART M

for carrying out construction should be refused on 347

the ground that it was not in
(v) Agreement dated 29 October 1945 executed in
public interest and would lay the seeds of conflict respect of a shop by
between the Hindus and
Mahant Raghunath Das179;
Muslim communities. In appeal, the District Judge
Faizabad on 18/26 March (vi) The report by the Waqf Inspector stating that
Muslims were not able to

202
perform namaz Isha at the mosque due to the fear 348
of Hindus and Sikhs180;
The documentary evidence relied upon by Nirmohi
(vii) The report of the Waqf Inspector dated 29 Akhara does not shed light in
December 1949 recording the
respect of the premises within the inner courtyard.
presence of police personnel between 22/23
December 1949181, and that 302. Dr Rajeev Dhavan has, in the course of the
hearing of the appeal, filed a
no namaz was being performed except on Friday
when the mosque is detailed response to the exhibits which were relied
upon by Nirmohi Akhara. The
open for 3-4 hours and that several bairagis were
trying to forcibly take course of events in the history of the communal
conflict indicates a series of
possession of the mosque;
conflagrations between Hindus and Muslims in
(viii) The report of the receiver dated 5 January 1856-57 and 1934. The mosque
1950 which refers to Nirmohi
was partially damaged in 1934 and subsequently,
Akhara while depicting the boundaries of the obstructions were placed in the
property taken into
course of offering namaz in the mosque involving a
possession by him.182 Post attachment on 5 denial of the right to pray for
January 1950, it has been
the Muslims. This is followed by the events which
submitted that objections were filed by Mahant took place on 22/23 December
Baldeo Das in the
1949 when idols were surreptitiously placed under
proceedings under Section 145183; the central dome. Soon

(ix) In 1961, permissions were sought for carrying thereafter, proceedings were initiated under Section
out construction in the outer 145 resulting in the

courtyard; and attachment of the property. In this background, it is

difficult to accept the case of
(x) The clarification of the City Magistrate dated 9
February 1961 stating that Nirmohi Akhara that the disputed structure was a
temple which was in its
there was no objection to the replacing of canvas or
cover. exclusive possession and that no incident had taken
place on 22/23 December
Adverting to the documents which have been relied
upon by Nirmohi Akhara, 1949.

Justice Sudhir Agarwal held that the contents of Documentary evidence in regard to the mosque
documents to which the (1934-1949)

defendants were not parties are not relevant on 303. In order to refute the claim of Nirmohi Akhara
questions of title and possession. in regard to possession of

the disputed structure, Mr Zafaryab Jilani, learned

178 Exhibit 9 179 Exhibit 10 180 Exhibit A-63 - Senior Counsel appearing for
Suit 1 181 Exhibit A- 64 - Suit 1 182 Exhibit A– 3
the Sunni Central Waqf Board relied on
– Suit 4 183 Exhibit 6 -Suit 3
documentary evidence to support the
PART M

203
case that the structure situated within the inner religious services187;
courtyard was a mosque and that
(b) Application of Mohd Zaki and others dated 5
it was being used by Muslims to offer namaz from June 1934 for the
1934 to 1949. This
recovery of fines from the Bairagis for causing
documentary evidence has a bearing on the damage to the
correctness of the claim of Nirmohi
mosque188;
PART M
184 Exhibit A-4 – Suit 4
349 185 Exhibits A-5 - Suit 4 186 Exhibit A-6 – Suit 4
187 Exhibit A-49- Suit 1 188 Exhibit A-6- Suit 1
Akhara in regard to exclusive possession of the
mosque and hence needs to be PART M

scrutinised. The documentary evidence consists of 350

the following:
(c) The order of the District Magistrate dated 6
(i) Certified copy of the order dated 4 June October 1934 for the
1942184 and decree dated 6 July
payment of compensation for the damage caused to
1942 in Regular Suit 95 of 1941 (Mahant the mosque189;
Ramcharan Das v Raghunath
(d) Application of Tahawar Khan, the contractor,
Das) before the Additional Civil Judge, dated 25 February
Faizabad.185 A compromise was
1935 for the payment of his bills for the repair of
arrived at in the Suit. The terms of compromise the mosque190;
contain a specific
(e) The order of the Deputy Commissioner,
reference to the ―Babri Masjid‖186: Faizabad dated 26

―2. A pucca temple along with lands situated at February 1935 for inspection of the work done by
JanambhumiBabri Masjid in Mohalla Ramkot, City the SDM Sadar
Ayodhya, Pargana Haveli Awadh, Tehsil & Dist.
Faizabad, whose boundaries are described as under: prior to payment of bills for the repair of the
East : Parti & Kabristan (Graveyard) West: Babri mosque191;
Masjid North: Pucca Road South: Kabristan
(f) Estimate of repairs submitted by the contractor
(Graveyard).‖
on 15 April 1935
The suit was between the Nirmohis inter se. The
including the repair of the domes192;
above document indicates that
(g) An application of the contractor dated 16 April
the existence of the mosque cannot be denied;
1935 in regard to the
(ii) After the riots which took place on 27 March
delay in the completion of work. The letter stated
1934 on or about the occasion
that the repair to
of Bakri-Eid, a portion of the mosque was
the dome was under preparation as were the marble
destroyed. In that connection,
tablets with the
there are documents relating to the repair of the
inscriptions of Allah193;
premises:
(h) Inspection note dated 21 November 1935 of the
(a) Permission granted for cleaning of Babri Masjid
Assistant Engineer,
and its use for

204
Public Works Department, Faizabad regarding Imam of Babri Masjid regarding the payment of his
repair of Babri outstanding salary until

Masjid, noting that the work was inspected and 1935198;

found to be
(ii) Application of Syed Mohd Zaki dated 19/20
satisfactory194; July 1938 before the Waqf

(i) Report of the bill clerk dated 27 January 1936 Commissioner in response to a notice under
on the bill of the Section 4 of the Muslim Waqf

contractor regarding the repair of the mosque195; Act 1936199;

(j) Order of Mr A D Dixon dated 29 January 1936 (iii) Application of Abdul Ghaffar, Pesh Imam
regarding payment Babri Masjid dated 20 August

for the work of repair of Babri Masjid196; and 1938 before the Waqf Commissioner, Faizabad,
seeking a direction to the
189 Exhibit A-43- Suit 1
190 Exhibit –A- 51 – Suit 1 191 Exhibit A-45- Suit Mutawalli for the payment of the arrears of his
1 192 Exhibit –A-44- Suit 1 193 Exhibit –A-50- salary due upto 31 July
Suit 1 194 Exhibit A-48- Suit 1 195 Exhibit A-46 –
Suit 1 1938200;

PART M
196 Exhibit A-47- Suit 1 197 Exhibit A-52- Suit 1
351 198 Exhibit A-7- Suit 1 199 Exhibit A- 67- Suit 1
200 Exhibit A- 61- Suit 1
(k) Application of the contractor dated 30 April
1936 complaining of the PART M

deductions made from his bill for the repair of 352

Babri Masjid.197
(iv) Reply of the brother of Syed Mohd Zaki (the
The above documents which have been duly former Mutawalli) dated 20
exhibited indicate that following the
November 1943 to the notice of the Sunni Waqf
riots of 1934, a Muslim contractor was engaged for Board dated 27 October
the repairs of the Babri
1943.201 The letter contains a clear reference to
Masjid. There is a reference to the damage the arrangement made for
sustained by the mosque and to the
maintaining the daily needs for the mosque as well
work of restoration that was carried out by the as the requirements for
contractor.
Friday prayers:
304. Besides the documentary evidence relating to
repair, another set of ―That mat, floor cloth and janamaaz – prayer rug
etc. are kept sufficient for daily needs only. Other
documents relates to the services of the Imam at floor cloth and prayer rugs are kept with the
Babri Masjid: Maulavi Abdul Ghaffar, Pesh Imam. These are
brought to the mosque on every Friday and are kept
(i) An agreement/undertaking was executed by
back in the same place after Jumah prayers because
Syed Mohd Zaki, trustee of
floor cloth often gets stolen from the masjid. It is
Babri Masjid on 25 July 1936 in favour of the for the reason that all mats and floor cloth are not
Maulvi Abdul Ghaffar, Pesh kept in the masjid.‖

205
(v) Notice dated 11 April 1945 of the Shia Waqf to the ground. They also erected a makeshift maker
Board to the Sunni Waqf and put stones on the site of some graves. There
was police bandobast at the time of recitation of
Board before instituting a suit under Section 5(2) of Ramayan. Despite this, the graves were dug out.
the UP Muslim Waqf Police arrested four people who were later released
on bond. Khawaja Rahmatullah‘s mausoleum
Act 1936, challenging the notification dated 26
which is nearby the graveyard on a rising mound
February 1944 declaring
has also been dug out and levelled to the ground. A
the mosque as a Sunni Waqf202; Bairagi has started residing there. The Bairagis‘ are
squatting near the pucca grave which is near the
(vi) Notice dated 25 November 1948 of the door of the courtyard adjacent to the walls of the
Secretary, Sunni Waqf Board about Masjid. The Bairagis have erected a hut. Before the
commencement of this recitation, the Bairagis had
charge of Tauliat due to the death of the looted and broken the fence. The muezzin was
Mutawalli203; thrashed and thereafter they tried to dug out the
inscription on the Masjid. Two Muslims who were
(vii) The report of the Waqf Inspector dated 10/12
strangers were beaten and they suffered serious
December 1949 regarding
injuries. Now there are two camps outside the
the harassment of Muslims while going for Masjid. In one of them are stationed police
prayers204; and constables and in another sepoys of the battalions.
The total numbers of (constables and sepyoys) is
(viii) Report of Waqf Inspector dated 23 about 7 to 8. Now the Masjid remains locked. No
December 1949 in regard to the Azaan is allowed nor Namaaz performed except on
the day and time of Jumaaah. The lock and the keys
condition of Babri Masjid, stating that keys remain with Muslims. But the police do not allow
remained with the Muslims and them to open the lock. The lock is opened on the
day of Jumaah, i.e. Friday for two or three hours.
only Friday prayers were being offered205:
During this period, the Masjid is cleaned and
―I had to inquire into the present condition of Jumaah prayers are offered. Thereafter it is locked
Babri Masjid Ayodhya and Qabrastan (graveyard) as usual. At the time of Jummah much noise is
on 22nd December, 49 I spent the whole day created. When the Namazis go downstairs, shoes
making inquiry. My inquiry made me and clouds of earth are thrown at them. But
201 Exhibit A-66- Suit 1 202 Exhibit A-65- Suit 1 Muslims do not react to it out of fear. After
203 Exhibit A-62- Suit 1 204 Exhibit A-63- Suit 1 Raghavdas, Mr Lohia had also come to Ayodhya
205 Exhibit A-64- Suit 1 and he had addressed people saying that flower
plants should be planted on the place of graves. A
PART M minister also came from Lucknow. The Bairagis
told him that Masjid is the Janmbhoomi. Help us
353 get it. He refused to do this by force. Hearing this
Bairagis got angry with him, and he had to return to
aware about the following conditions and events. A
Faizabad under Police protection. In the meantime,
period of three months has elapsed to the arrival of
in the Kanak Bhavan Mandir of Ayodhya, Mahant
Baba Raghunath ostensibly to visit the
Babasthan, Mahant Raghubardas, Vedantiji,
janamasthan. He exhorted the Beragis and Pujaris –
Narayan Das, Acharyaji wanted to call Muslims
worshippers forcefully that Ramayanpath –
but none came out there with the exception of
recitation of Ramayan – should be done at
Zahoor Ahmad. Hindus asked Zahoor Ahmad to
janmasthan. This message spread to all nearby and
help them get the Masjid. He
surrounding areas. After a month of the departure
of Baba Raghubardas, thousands of Hindus and PART M
Pujaris and Pandits gathered there for Ramayan
path. The path (recitation) went on for weeks. In 354
the meantime the Beragis dug outside the front part
of the Masjid and part of Qabrasthan and leveled it

206
was told that if it is done then we are brothers, payments made by Public Works Department;
otherwise, we are enemies. I stayed at Ayodhya 206 Exhibit A-7- Suit 1 207 Exhibit A-61
during night. In the morning I came to know that
Bairagis are trying to occupy the Masjid forcibly. It PART M
is Jumaah-Friday –today. When I reached the site,
355
10 to 15 Bairagis with clubs and axes were found
present in the courtyard of the Masjid and many (iii) The engagement of services of the Pesh Imam
Bairagis are sitting on the door of the Masjid with and the attendant dispute
clubs. Hindus of the surrounding area are also
gathering there. City Magistrate, Police Officer of pertaining to non-payment of his arrears of salary;
the City and other police force is deployed in
sufficient numbers. Muslims from Faizabad would (iv) The report of the Waqf Inspector in December
certainly come to offer of Jumaah (Friday) prayers. 1949 stating that the
What would be their fate I do not know. Now I am
Muslims were being harassed in offering prayers in
crossing the river and going to Lakkadmandi
the mosque as a result
Gonda.‖ (Emphasis supplied)
of which only Friday prayers were being offered;
Justice Sudhir Agarwal held that the
and
undertaking/agreement206 for the payment of
(v) The apprehension expressed by the Waqf
salary including arrears to the Pesh Imam has not
Inspector of danger to the
been proved. Besides being
mosque.
exhibited in evidence, this document finds a
reference in an application by the 306. In view of the above analysis of the oral
evidence and documentary
Pesh Imam before the Waqf Inspector for the
payment of his salary in terms of material, the following conclusions can be drawn:
the agreement, a copy of which was filed with the (i) There are serious infirmities in the oral accounts
application.207 As regards the of Nirmohi witnesses that
reports of the Waqf Inspector, the written the disputed structure was not a mosque but the
submissions filed on behalf of the Janmabhumi temple;
Nirmohi Akhara in fact rely on both the reports. (ii) The documentary evidence relied on by
The reason indicated by Justice Nirmohi Akhara does not establish
Sudhir Agarwal for not relying on the reports – that its possession of the inner courtyard and the
no one has seen the Waqf structure of the mosque
Inspector is specious. The report dated 10/12 within it, being the subject of Suit 3;
December 1949 has been
(iii) Contrary to the claims of Nirmohi Akhara,
specifically relied upon in the plaint in Suit 5 and documentary evidence
in the Examination-in-Chief of
establishes the existence of the structure of the
plaintiff 3 in Suit 5. mosque between 1934
305. The above documents demonstrate: and 1949; and
(i) The steps taken after the riots of 1934 for the (iv) As regards namaz within the mosque, the
restoration of the mosque; Muslims were being obstructed
(ii) The repairs carried out by the contractor for
repairing the mosque and

207
in offering prayers as a result of which by the deity of Lord Ram was an issue struck in Suit 5
December 1949, Friday prayers and will hence be considered

alone were being offered. while dealing with that suit. Some of the evidence
which has been discussed
This documentary evidence in regard to the
presence and use of the mosque above is also of relevance on the question of title
and will be re-visited at the
until December 1949 is supported by the letter of
the Superintendent of Police, appropriate stage in the course of this judgment.

Faizabad dated 29 November 1949 specifically, N. Suit 5: The deities

referring to the attempts which
N.1 Array of parties
PART N
308. Suit 5 was instituted on behalf of the first and
356 second plaintiffs through a

were being made to surround the mosque so as to next friend who was impleaded as the third
lead the Muslims to abandon plaintiff. The first and second plaintiffs

it. This is coupled with the letter dated 16 are: ―Bhagwan Sri Ram Lala Virajman‖ and
December 1949 of the District ―Asthan Sri Ram Janma Bhumi,

Magistrate to the Chief Secretary seeking to allay PART N

the apprehensions in regard to
357
the safety of the mosque.
Ayodhya‖. The third plaintiff was Sri Deoki
307. Suit 3 has been held to be barred by limitation. Nandan Agarwala, a former Judge of
The oral and documentary
the Allahabad High Court. The third plaintiff was
evidence have been analysed above to render a full subsequently substituted by an
adjudication of the claims of
order of the High Court as a result of his death.
Nirmohi Akhara: (i) denying the existence of the
mosque; (ii) asserting that the 309. The first defendant is the legal representative
of Gopal Singh Visharad (the
structure in the inner courtyard was a temple which
was in its exclusive plaintiff in Suit 1); the second defendant was the
plaintiff in Suit 2 (which was
possession; and (iii) denying the incident on the
night between 22/23 December subsequently withdrawn); the third defendant is
Nirmohi Akhara (the plaintiff in
1949. Nirmohi Akhara has failed to prove its
assertions. The documentary Suit 3); the fourth defendant is the Sunni Central
Waqf Board (the plaintiff in Suit
evidence will be of relevance in determining the
objections raised by Nirmohi 4); the fifth and sixth defendants are Muslim
residents of Ayodhya and Faizabad;
Akhara (supported by the Sunni Central Waqf
Board) to the maintainability of Suit the seventh, eighth, ninth and tenth defendants are
the State of Uttar Pradesh
5. Whether Nirmohi Akhara has established that
they were a shebait in service of and its officers; the eleventh defendant is the
President of the All India Hindu

208
Mahasabha; the twelfth and thirteenth defendants the officials in regard to the properties in dispute
represent the All India Arya were bona fide in due discharge

Samaj and the All India Sanatan Dharma Sabha of their official duties.
respectively; the fourteenth
N.3 Pleadings
defendant was Sri Dharam Das, described as the
Chela of Baba Abhiram Das, 311. The plaint in Suit 5 proceeds on the
foundation that the first and second
who was allegedly involved in the incident which
took place on 22/23 December plaintiffs ―are juridical persons with Bhagwan Sri
Rama as a presiding deity of the
1949; defendants fifteen and sixteen are Hindu
residents of Ayodhya and place‖. The third plaintiff is described as a
‗Vaishnava Hindu‘. The plaint adopts
Faizabad; defendant seventeen was a resident of
District Faizabad (since for its description of Ram Janmabhumi, ―two site
plans of the building premises
deleted); defendants eighteen and nineteen are
Mahant Ganga Das and Swami and of the adjacent area known as Sri Ram Janma
Bhumi prepared by Shiv
Govindacharya Manas Martand; defendant twenty
was Umesh Chandra Pandey Shankar Lal‖ in discharge of his duty as a
Commissioner appointed by the Court
who opposed the claim of the Nirmohi Akhara in
Suit 3 (but did not lead any of the Civil Judge, Faizabad in Suit 1. These site
plans together with his report
evidence); defendant twenty-one is described as the
―Sri Ram Janma Bhumi are Annexures I, II and III to the plaint.

Nyas‖, a trust which has been impleaded through its 312. After setting out a history of the earlier suits
managing trustee Sri Ashok instituted before the civil

Singhal; defendants twenty-two to twenty-five are court208 and the proceedings under Section 145,
the Shia Central Board of the plaint states that these suits

Waqfs, individuals representing the Shias; continue to remain pending ―with a dim prospect
defendant twenty-six is the General of their immediate hearing‖.

PART N Though, the seva and puja of the plaintiff deities is

stated to have been carried
358 208 Suit 2 of 1950, Suit 25 of 1950, Suit 26 of
1959 and Suit 12 of 1961
Secretary of the Jamaitul Ulema Hind U P and
defendant twenty-seven is a PART N

Muslim resident of Faizabad. 359

N.2 No contest by the State of Uttar Pradesh out properly, it has been stated that darshan has
been allowed only from behind
310. The State of Uttar Pradesh filed a statement
(in Suit 4 of 1989) stating that a barrier for Hindu devotees. The plaintiff deities
and devotees are stated to be
―the government is not interested in the properties
in dispute‖ and the actions of ―extremely unhappy‖ with the delay in the
disposal of the suits, the deterioration

209
in the management of the affairs of the temple and extent‖ involved in seeking to gratify their personal
with the alleged interest by obtaining control

misappropriation of the offerings of worshippers by PART N

pujaris and other temple staff.
360
The Hindu devotees, it has been stated, are desirous
of having a new temple over worship of the plaintiff deities. In this
background, the plaintiffs have
constructed after removing the existing structure at
Ram Janmabhumi. According instituted a suit of their own.

to the plaint, the head of the Ramananda 313. The plaint states that it is established by
Sampradaya was entrusted with the ―unimpeachable authority‖ that the

task of addressing the mismanagement of the premises in dispute represent the place where Lord
temple and facilitating the Ram was born. The second

construction of a new temple. This eventually led plaintiff, described as ―Asthan Sri Ram Janma
to the Deed of Trust dated 18 Bhumi‖, is stated to be an

December 1985 which was registered with the Sub- independent object of worship, worshipped by the
Registrar. The trust has been devotees as personifying the

named the ―Sri Ram Janma Bhumi Nyas‖ and divine spirit of Lord Ram. Hence, it has been
consists of ten trustees. In averred that the land at Ram

addition, the Vishva Hindu Parishad, through its Janmabhumi has possessed a juridical personality
Marga Darshak Mandal is to even prior to the construction

nominate four trustees, which it did. Further, five of the existing structure or the installation of idols
trustees have been nominated within the central dome. It has

from amongst ―eminent Hindu citizens of India‖. been stated that Hindus worship not merely the
Of the aforesaid five persons, the material form or shape of an idol

third plaintiff was nominated as one of the trustees. but the divine spirit which is invoked by
Ram Janmabhumi Nyas is consecration or prana pratishtha. It is

stated to be directly interested in the seva-puja and stated that the divine spirit is worshipped as a deity
other affairs of the plaintiff at the site of the second

deities. The plaintiffs further indicate that the plaintiff and hence it has been submitted that the
existing suits ―are inadequate‖ and place itself is a deity. The deity,

cannot result in a settlement of the dispute as it has been submitted, being indestructible,
neither the presiding deity, continues to exist so long as the

Bhagwan Sri Ram Virajman, nor Asthan Sri Ram place exists, and the place being land, continues to
Janma Bhumi (both of whom exist irrespective of any

are stated to be juridical persons) were impleaded construction on it.

in the previous suits.
314. The plaint proceeds to rely on the 1928 edition
Moreover, it is alleged that some of the parties to of the Faizabad Gazetteer,
the earlier suits are ―to some

210
in support of the plea that the ancient temple, called 145 to which the plaintiff deities were not parties.
the Ram Janmabhumi In the alternate to the plea of

temple, was destroyed by Babur in 1528 and on its the original title vesting in the plaintiff deities, it
site, a mosque was built has been stated that the deities

largely with the materials of the destroyed temple, have been in possession and any claim of title
including the Kasauti pillars. adverse to the deities stands

Yet, according to the plaint, the worshippers extinguished by adverse possession.

continued to worship Lord Ram
315. The plaint sets out that Hindu devotees were
through symbols such as the Charan and Sita Rasoi desirous of constructing a
and the idol of Lord Ram on
temple at the disputed site and, the ―active
the Ramchabutra within the enclosure. It has been movement‖ was scheduled to
submitted that no one could
commence from 30 September 1989 with the
PART N foundation stone being laid on 9

361 November 1989. Nirmohi Akhara, it has been

stated, has put forward a personal
enter the building except after passing through
areas where Hindus worshipped. interest in the management of the worship of the
plaintiff-deities and there being
The plaint disputes whether a mosque could validly
be constructed in accordance no other fit person to represent them, the third
plaintiff has instituted the suit as
with Islamic tenets on the site of a Hindu temple
which is surrounded by Hindu next friend. It is averred that in order to remove any
obstacles in the fulfilment of
places of worship. According to the plaintiffs,
worshippers of the deities have PART N

continued to pray at Ram Janmabhumi for 362

centuries; the place belongs to the
the movement to construct a new temple, the entire
deities and no valid waqf was ever created or could premises at the disputed site
have been created. Despite
constitute ―one integral complex‖ with ―a single
occasional trespass by the Muslim residents, it has identity‖. The claim of the
been stated that title and
Muslims is stated to be confined to the enclosure
possession vested in the plaintiff deities. It is within the inner boundary wall.
alleged that no prayers were offered
The plaint was amended after the demolition of
at the mosque. After independence, the graves Babri Masjid in 1992 to
surrounding Ram Janmabhumi
incorporate averments pertaining to the
were dug up by the Bairagis and eventually on the circumstances prior to, during and
night of 22/23 December
following the demolition. According to the
1949, an idol of Lord Ram was installed with due plaintiffs, shebaiti rights were taken
ceremony under the central
away and entrusted to the statutory receiver
dome of the disputed building. This was followed following the enactment of the
by proceedings under Section

211
acquisition ordinance and the law enacted by Janmabhumi but in the temple known as the
Parliament. Janmabhumi temple for whose

The cause of action for the institution of the suit is charge and management it has instituted Suit 3.
stated to have accrued ―from According to the written

day to day‖ especially when the plans for statement, Asthan simply means a place and is not
construction of a new temple were a juridical person. The third

alleged to be obstructed by violent action on the plaintiff, it has been asserted is not a worshipper of
part of certain Muslims. the deity and is a Vaishnavite

On the above pleadings, two reliefs have been and has no locus to represent the deity or the ―so-
sought in Suit 5: called Asthan‖. It has been

(a) A declaration that the entire premises of Sri urged that there was an attempt to mobilise a sum
Ram Janmabhumi described of Rs. 25 crores for the

in Annexures I, II and III belong to the plaintiff- construction of a new temple. Nirmohi Akhara
deities; and states that the birth-place of Lord

(b) A permanent injunction prohibiting the Ram is not in dispute and it is located at Ayodhya
defendants from interfering with or where the Ram Janmabhumi

obstructing the construction of a new temple at Sri temple stands. The Ram Janmabhumi temple is
Ram Janmabhumi after stated to be in the disputed land

the demolition and removal of the existing which the Muslims claim to be a mosque. Asthan
buildings and structures. Janmabhumi is stated to be the

PART N birth-place of Lord Ram comprising of the entire

city of Ayodhya. Nirmohi Akhara
363
has claimed that it is the shebait of the idol of Lord
N.4 Written statements Ram installed in the temple in

Nirmohi Akhara dispute and that it alone has the right to control,
supervise, repair and reconstruct
316. In response to Suit 5, Nirmohi Akhara filed its
written statement submitting the temple. It has been submitted that Nirmohis‘
suit was filed in 1959, whereas,
that the suit instituted through a next friend is
malicious and is a ―design to the Ram Janmabhumi Nyas has come into
existence in 1985 ―with an obvious
damage the title and interest of the answering
defendants‖. Nirmohi Akhara design to damage the title and interest of the
Akhara‖. Nirmohi Akhara has
denies the locus of the next friend as the third
plaintiff to represent the deities. It PART N

specifically denies the status of the second plaintiff 364

as a juridical person.
alleged that the idol of Lord Ram was always
Bhagwan Sri Ram, according to Nirmohi Akhara is installed in the Ram Janmabhumi
installed not at Ram
temple; that the temple belongs to it and no one
else has the right to construct a

212
new temple. Suit 5 has been opposed on the ground Janmabhumi Nyas is illegal.
that the plaintiffs have ―no
PART N
real title to sue‖ and that the suit is an
encroachment on the rights of the Nirmohis 365

to manage the temple. Hence, according to it, the All India Hindu Mahasabha
disputed premises mentioned
317. The President of the All India Hindu
by the plaintiffs in Suit 5 belong to the Nirmohi Mahasabha filed a written statement
Akhara and the plaintiffs cannot
claiming that as a party to the Sri Ram Janmabhumi
seek a declaration against the right and title of Nyas, it is directly dedicated
Nirmohi Akhara. Accordingly,
to the seva-puja and other affairs of the Ram
Nirmohi Akhara has prayed for the dismissal of Janmabhumi temple.
Suit 5.
Sunni Central Waqf Board
In its additional written statement, Nirmohi Akhara
318. The Sunni Central Waqf Board has opposed
has stated that the outer
the suit of the plaintiff-deities.
Sahan (courtyard) ―carried a little temple‖ of Lord
In its written statement, it denies the juridical status
Ram which was regularly
of the first and second
worshipped according to the customs prevailing
plaintiffs and the locus of the third plaintiff to act
among Ramanandi Bairagis. The
as a next friend. According to the
outer part of this temple is stated to have been in
Sunni Central Waqf Board, no deities were
the management and charge of
installed within the premises of Babri
Nirmohi Akhara as its shebait till the outer portion
Masjid until the idol was surreptitiously brought in
was attached on 16 February
on the night between 22-23
1982 in Regular Suit 239 of 1982. The outer
December 1949. The written statement denies the
portion, it has been stated, has been
presence of a presiding deity
in possession and management of Nirmohi Akhara
or of ―any Asthan‖. Placing reliance on the
and the idol of Lord Ram
dismissal of the Suit of 1885 instituted
installed on Ramchabutra is stated to be a distinct
by Mahant Raghubar Das, it has been submitted
legal entity owned by Nirmohi
that the plaintiffs cannot claim
Akhara. It has been submitted that the Magistrate‘s
any portion of the Babri Masjid to have assumed a
order of attachment under
juridical personality by the
Section 145 pertained only to the three-domed
name of ―Ashthan Ram Janmabhumi‖, particularly
structure where the idol of Lord
in the absence of the
Ram is stated to have been installed by Nirmohi
installation of a deity or a personification in
Akhara from time immemorial
accordance with the tenets of Hindu
and which was always in its management and
religion or law. The written statement contains a
possession. In a further written
denial of the allegation that their
statement, Nirmohi Akhara has claimed that the
existed any temple at the site of Babri Masjid or
constitution of the Ram
that the mosque was constructed

213
after destroying it, with the material of the alleged juridical status of the first and second plaintiffs and
temple. The mosque, it has the locus of the third plaintiff.

been averred, has always been used as a mosque In an additional written statement filed jointly by
since its construction during the Sunni Central Waqf Board

the regime of Babur. The land is stated to have and the fifth defendant, the contents of the
belonged to the State when it was amended plaint have been denied and

constructed, and the mosque is claimed to have it has been urged that the claim in regard to the
been built on vacant land. The idols stood extinguished after

Ramchabutra is alleged to have been created they were removed on 6 December 1992.
around 1857. The possession of
N.5 Issues and findings of the High Court
PART N
320. The issues which were framed in the Suit and
366 the findings of the three

the Muslims is stated to have been uninterrupted judges in the High Court are catalogued below:
and continuous since the
209 Mohammad Hashim
construction of the mosque up to 23 December
1949 and hence, any right, title or PART N

interest to the contrary would stand extinguished by 367

adverse possession.
1 Whether the first and second plaintiffs are
According to the written statement, regular prayers juridical persons.
were offered in the mosque
 Justice S U Khan – The idol is duly capable of
up to 22 December 1949 and Friday prayers until holding property.
16 December 1949. According
 Justice Sudhir Agarwal – Answered in the
to the written statement, the cause of action must affirmative – both plaintiffs
be deemed to have accrued in
1 and 2 are juridical persons.
December 1949 when the property was attached,
 Justice D V Sharma – Decided in favour of the
and the Muslims denied the
plaintiffs.
claim of the Hindus to perform puja in the mosque.
2 Whether the suit in the name of deities described
Hence, the suit is stated to be
in the plaint as the
barred by limitation.
first and second plaintiffs is not maintainable
319. The fifth defendant209, in his written through the third
statement, has denied the locus of the
plaintiff as next friend.
Nyas. Besides this, it has been submitted that the
 Justice S U Khan – Followed the decision of
premises have always been a
Justice Sudhir Agarwal.
mosque since its construction in the sixteenth
 Justice Sudhir Agarwal – Suit held to be
century and were used by Muslims
maintainable.
for offering namaz and for no other purpose. The
 Justice D V Sharma – Suit held to be
fifth defendant denied the
maintainable.

214
3(a) Whether the idol in question was installed 3(d) If the aforesaid issue is answered in the
under the central dome of affirmative, whether the idols

the disputed building (since demolished) in the so placed still acquire the status of a deity.
early hours of
 Justice S U Khan - Adopted the findings of
December 23, 1949 as alleged by the plaintiff in Justice Sudhir Agarwal.
paragraph 27 of the
 Justice Sudhir Agarwal - Answered in the
plaint as clarified in their statement under Order X affirmative.
Rule 2 of the CPC.
 Justice D V Sharma - Answered in the
 Justice S U Khan - The idols were placed inside affirmative.
the mosque for the
4 Whether the idols in question had been in
first time during the night of 22/23 December 1949. existence under the

 Justice Sudhir Agarwal – Answered in the ―Shikhar‖ prior to 6 December 1992 from time
affirmative. immemorial as alleged

 Justice D V Sharma – Answered in the in paragraph 44 of the additional written statement

affirmative. of Nirmohi Akhara

3(b) Whether the same idol was reinstalled at the (the third defendant).
same place on a
 Justice S U Khan – The idols were placed inside
Chabutra under the canopy. the mosque for the

 Justice S U Khan – Adopted the findings of first time on 22-23 December 1949.
Justice Sudhir Agarwal.
 Justice Sudhir Agarwal - Answered in the
 Justice Sudhir Agarwal – Answered in the negative; the idols under
affirmative.
the central dome were in existence prior to 6
PART N December 1992 but

368 were placed during the night of 22-23 December

1949.
 Justice D V Sharma - Answered in the
affirmative. PART N

3(c) Whether the idols were placed at the disputed 369

site on or after 6
 Justice D V Sharma – The idols were not under
December 1992 in violation of the court‘s order the central dome
dated 14 August 1989
prior to 22-23 December 1949.
and 15 November 1991.
5 Is the property in question properly identified
 Justice S U Khan - Adopted the findings of and described in the
Justice Sudhir Agarwal.
plaint.
 Justice Sudhir Agarwal – Answered in the
negative.  Justice S U Khan - No temple was demolished
for constructing the
 Justice D V Sharma - Decided in favour of the
plaintiffs.

215
mosque. Until the mosque was constructed during  Justice D V Sharma – Answered against
the reign of Babur, Nirmohi Akhara, in favour of the

the premises were neither treated nor believed to be plaintiffs.

the birth-place of
8 Is the defendant Nirmohi Akhara the ―Shebait‖
Lord Ram. of Bhagwan Sri Ram

 Justice Sudhir Agarwal – There is no ambiguity installed in the disputed structure.

in the identification
 Justice S U Khan – Adopted the findings of
or description of the property. Justice Sudhir Agarwal.

 Justice D V Sharma – Answered in favour of the  Justice Sudhir Agarwal – Answered against
plaintiffs. Nirmohi Akhara.

6 Is third plaintiff not entitled to represent  Justice D V Sharma – Answered against

plaintiffs 1 and 2 as their Nirmohi Akhara, held that

next friend and is the suit not competent on this Nirmohi Akhara is incompetent to represent the
account. first and second plaintiffs.

 Justice S U Khan - Adopted the findings of 9 Was the disputed structure a mosque known as
Justice Sudhir Agarwal. Babri Masjid?

 Justice Sudhir Agarwal – Answered in the  Justice S U Khan – The mosque was constructed
negative, in favour of the by or under the orders

plaintiffs. of Babur. Until 1934, Muslims offered regular

prayers and thereafter, until
 Justice D V Sharma – Decided in favour of the
plaintiffs. 22 December 1949 only Friday prayers were
offered.
7 Whether Nirmohi Akhara (the third defendant)
alone is entitled to  Justice Sudhir Agarwal – Answered against the
plaintiffs.
represent the first and second plaintiffs, and is the
suit not  Justice D V Sharma – Answered against the
Sunni Central Waqf Board
competent on that account as alleged in paragraph
49 of the and in favour of the plaintiffs.

additional written statement of Nirmohi Akhara 10 Whether the disputed structure could be treated
(the third defendant). to be a mosque on

 Justice S U Khan - Adopted the findings of the allegations contained in paragraph 24 of the
Justice Sudhir Agarwal. plaint.

PART N  Justice S U Khan – The mosque was a valid

mosque.
370
 Justice Sudhir Agarwal – Answered in the
 Justice Sudhir Agarwal – Answered in the affirmative.
negative against Nirmohi
 Justice D V Sharma – The mosque was
Akhara, in favour of the plaintiffs. constructed upon demolition of

216
the temple. Sunni Central Waqf Board.

PART N 15 Whether the disputed structure claimed to be

Babri Masjid was
371
always used only by the Muslims regularly for
11 Whether on the averments made in paragraph offering namaz ever
25 of the plaint, no
since its alleged construction in 1528 A.D. to 22
valid waqf was created in respect of the structure in December 1949 as
dispute to
alleged by the defendants 4 and 5.
constitute it as a mosque.
PART N
 Justice S U Khan – The mosque is a valid
mosque. 372

 Justice Sudhir Agarwal – Answered in the  Justice S U Khan – Until 1934, Muslims were
affirmative. offering regular prayers in

 Justice D V Sharma – No valid waqf with the mosque. Thereafter, until 22 December 1949,
respect to the disputed property. only Friday prayers were

12 Deleted vide order dated 23 February 1996. offered.

13 Whether the suit is barred by limitation.  Justice Sudhir Agarwal – At least from 1860,
namaz was offered in the
 Justice S U Khan – The suit is not barred by
limitation. inner courtyard. The last namaz was on 16
December 1949.
 Justice Sudhir Agarwal – The suit is not barred
by limitation.  Justice DV Sharma – Connected with Issue Nos.
1-B(c),
 Justice D V Sharma – The suit is not barred by
limitation. 2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit
4 which were decided
14 Whether the disputed structure claimed to be
Babri Masjid was against the Sunni Central Waqf Board.

erected after demolishing Janmasthan temple at its 16 Whether the title of plaintiffs 1 and 2, if any,
site. was extinguished as

 Justice S U Khan – No temple was demolished alleged in paragraph 25 of the written statement of
for the construction of the defendant 4. If

mosque. Until the mosque was constructed during yes, have plaintiffs 1 and 2 reacquired title by
the reign of Babur, the adverse possession as

premises were not believed to be the birth-place of alleged in paragraph 29 of the plaint.
Lord Ram.
 Justice S U Khan – Both parties were in joint
 Justice Sudhir Agarwal – Answered in the possession before 1855 and
affirmative.
hence, there was no need to decide the issue of
 Justice D V Sharma – Decided in favour of the adverse possession.
plaintiffs, against the

217
 Justice Sudhir Agarwal – The title of the first  Justice D V Sharma – The suit held to
and second plaintiffs has maintainable.

never been extinguished. 20 Whether the alleged Trust creating the Nyas,
defendant 21, is void on
 Justice DV Sharma - Connected with Issue Nos.
1B-(c), the facts and grounds stated in paragraph 47 of the
written statement
2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit
4 which were decided of defendant 3.

against the Sunni Central Waqf Board.  Justice S U Khan – Not answered.

17 Deleted vide order dated 23 February 1996.  Justice Sudhir Agarwal – Not answered.

18 Whether the suit is barred by Section 34 of the  Justice D V Sharma – Answered in favour of the
Specific Relief Act as plaintiffs.

alleged in paragraph 42 of the additional written 21 Whether the idols in question cannot be treated
statement of as deities as alleged

defendant 3 and also as alleged in paragraph 47 of in paragraphs 1,11,12,21,22,27 and 41 of the

the written written statement of

PART N defendant 4 and in paragraph 1 of the written

statement of defendant
373
5.
statement of defendant 4 and paragraph 62 of the
written statement  Justice S U Khan - Adopted the findings of
Justice Sudhir Agarwal.
of defendant 5.
PART N
 Justice S U Khan – Adopted the findings of
Justice Sudhir Agarwal. 374

 Justice Sudhir Agarwal – Answered in the  Justice Sudhir Agarwal and Justice D V Sharma
negative against the third, - Answered against the

fourth and fifth defendants. Sunni Central Waqf Board and fifth defendant.

 Justice D V Sharma – In favour of the plaintiffs, 22 Whether the premises in question or any part
against the defendants. thereof is by tradition,

19 Whether the suit is bad for non-joinder of belief and faith the birth-place of Lord Ram as
necessary parties, as pleaded alleged in paragraphs

in paragraph 43 of the additional written statement 19 and 20 of the plaint? If so, its effect.
of defendant 3.
 Justice S U Khan – Neither was any temple
 Justice S U Khan – Adopted the findings of demolished for constructing
Justice Sudhir Agarwal.
the mosque nor until the construction of the
 Justice Sudhir Agarwal – Answered in the mosque were the premises
negative.
treated or believed to be birth-place of Lord Ram.

218
 Justice Sudhir Agarwal – The place of birth of of Lord Ram until the mosque was constructed.
Lord Ram as believed and
 Justice Sudhir Agarwal – Worship of the first
worshipped by Hindus is covered under the central and second plaintiffs has
dome of the three
been since time immemorial: issue answered in the
domed structure in the inner courtyard of the affirmative.
premises in dispute.
 Justice DV Sharma – Connected with Issue Nos.
 Justice D V Sharma – Connected with Issue Nos 1-B(c),
1, 1(a), 1(b),1B-(b),
2,4,12,13,14,15,19(a),19(b),19(c), 27 & 28 of Suit
11,19(d),19(e) and 19(f) in Suit 4. Decided against 4. Answered against the
the Sunni Central Waqf
Sunni Central Waqf Board.
Board.
25 Whether the judgment and decree dated 30
23 Whether the judgment in Suit of 1885 filed by March 1946 passed in
Mahant Raghubar Das
Suit no 29 of 1945 is not binding upon the
in the Court of Special Judge, Faizabad is binding plaintiffs as alleged by the
upon the plaintiffs
plaintiffs.
by application of the principles of estoppel and res
judicata as  Justice S U Khan - Adopted the findings of
Justice Sudhir Agarwal.
alleged by the defendants 4 and 5.
 Justice Sudhir Agarwal - The plaintiffs were not
 Justice S U Khan - Section 11 of the CPC is not a party to the suit and
attracted as virtually
the judgment is therefore not binding on them.
nothing was decided in the Suit of 1885.
 Justice DV Sharma – Decided in favour of the
 Justice Sudhir Agarwal – Answered in the plaintiffs.
negative.
26 Whether the suit is bad for want of notice under
 Justice D V Sharma – Answered in favour of the Section 80 CPC as
plaintiffs.
alleged by the defendants 4 and 5.
PART N
 Justice S U Khan - Adopted the findings of
375 Justice Sudhir Agarwal.

24 Whether worship has been done of the alleged  Justice Sudhir Agarwal – Answered in favour of
plaintiff-deity on the the plaintiffs.

premises in the suit since time immemorial as  Justice D V Sharma - Answered in favour of the
alleged in paragraph plaintiffs.

25 of the plaint. PART N

 Justice S U Khan - Neither was any temple 376

demolished for constructing
27 Whether the plea of suit being bad for want of
the mosque nor were the premises treated or notice under Section
believed to be the birth-place
80 CPC can be raised by defendants 4 and 5.

219
 Justice S U Khan - Adopted the findings of  Justice D V Sharma – The plaintiffs were held
Justice Sudhir Agarwal. entitled to relief and the

 Justice Sudhir Agarwal – Answered in favour of suit was decreed.

the plaintiffs.
321. Justice Sudhir Agarwal granted the following
 Justice D V Sharma - Answered in favour of the relief in the Suit:
plaintiffs.
―(i) It is declared that the area covered by the
28 Whether the suit is bad for want of notice under central dome of the three domed structure, i.e., the
Section 65 of the U.P. disputed structure being the deity of Bhagwan Ram
Janamsthan and place of birth of Lord Rama as per
Muslim Waqf Act 1960 as alleged by defendants 4 faith and belief of the Hindus, belong to plaintiffs
and 5. If so, its (Suit-5) and shall not be obstructed or interfered in
any manner by the defendants. This area is shown
effect.
by letters AA BB CC DD is Appendix 7 to this
 Justice S U Khan - Adopted the findings of judgment. (ii) The area within the inner courtyard
Justice Sudhir Agarwal. denoted by letters B C D L K J H G in Appendix 7
(excluding (i) above) belong to members of both
 Justice Sudhir Agarwal – The provision is not the communities, i.e., Hindus (here plaintiffs, Suit-
applicable. 5) and Muslims since it was being used by both
since decades and centuries. It is, however, made
 Justice D V Sharma – Decided in favour of the clear that for the purpose of share of plaintiffs,
plaintiffs. Suit-5 under this direction the area which is
covered by (i) above shall also be included. (iii)
29 Whether the plaintiffs are precluded from
The area covered by the structures, namely, Ram
bringing the present suit on
Chabutra, (EE FF GG HH in Appendix 7), Sita
account of dismissal of Suit 57 of 1978 (Bhagwan Rasoi (MM NN OO PP in Appendix 7) and
Sri Ram Lala v Bhandar (II JJ KK LL in Appendix 7) in the outer
courtyard is declared in the share of Nirmohi
State) of the Court of Munsif Sadar, Faizabad. Akhara (defendant no. 3) and they shall be entitled
to possession thereof in the absence of any person
 Justice S U Khan - Adopted the findings of with better title. (iv) The open area within the outer
Justice Sudhir Agarwal. courtyard (A G H J K L E F in Appendix 7) (except
that covered by (iii) above) shall be shared by
 Justice Sudhir Agarwal and Justice D V Sharma
Nirmohi Akhara (defendant no. 3) and plaintiffs
- Answered in favour of
(Suit-5) since it has been generally used by the
the plaintiffs. Hindu people for worship at both places. (iv-a) It is
however made clear that the share of muslim
30 To what relief, if any, are plaintiffs or any of parties shall not be less than one third (1/3) of the
them entitled? total area of the premises and if necessary it may be
given some area of outer courtyard. It is also made
 Justice S U Khan - Adopted the findings of clear that while making partition by metes and
Justice Sudhir Agarwal. bounds, if some minor adjustments are to be made
with respect to the share of different parties, the
 Justice Sudhir Agarwal – The suit was partly
affected party may be compensated by allotting the
decreed in accordance with
requisite land from the area which is under
the directions contained in paragraph 4566. acquisition of the Government of India. (v) The
land which is available with the Government of
PART N India acquired under Ayodhya Act 1993 for
providing it to the parties who are successful in the
377 suit for better enjoyment of the property shall be
made available to the above concerned parties in

220
such manner so that all the three parties may utilise file their suggestions for actual partition by metes
the area to which they are entitled to, by having and bounds within three months.‖
separate
Justice D V Sharma decreed the suit of the
PART N plaintiffs in the following terms:

378 ―Plaintiffs' suit is decreed but with easy costs. It is

hereby declared that the entire premises of Sri Ram
entry for egress and ingress of the people without Janm Bhumi at Ayodhya as described and
disturbing each others rights. For this purpose the delineated in annexure nos. 1 and
concerned parties may approach the Government of
India who shall act in accordance with the above PART N
directions and also as contained in the judgement
of Apex Court in Dr. Ismail Farooqi (Supra). (vi) 379
A decree, partly preliminary and partly final, to the
2 of the plaint belong to the plaintiff nos. 1 and 2,
effect as said above (i to v) is passed. Suit-5 is
the deities. The defendants are permanently
decreed in part to the above extent. The parties are
restrained from interfering with, or raising any
at liberty to file their suggestions for actual
objection to, or placing any obstruction in the
partition of the property in dispute in the manner as
construction of the temple at Ram Janm Bhumi
directed above by metes and bounds by submitting
Ayodhya at the site, referred to in the plaint.‖
an application to this effect to the Officer on
Special Duty, Ayodhya Bench at Lucknow or the N.6 Shebaits: an exclusive right to sue?
Registrar, Lucknow Bench, Lucknow, as the case
may be. (vii) For a period of three months or unless The role and position of a shebait
directed otherwise, whichever is earlier, the parties
shall maintain status quo as on today in respect of 322. Courts recognise a Hindu idol as the material
property in dispute.‖ embodiment of a testator‘s

Justice S U Khan issued the following directions: pious purpose. Juristic personality can also be
conferred on a Swayambhu deity
―Accordingly, all the three sets of parties, i.e.
Muslims, Hindus and Nirmohi Akhara are declared which is a self-manifestation in nature. An idol is a
joint title holders of the property/ premises in juristic person in which title to
dispute as described by letters A B C D E F in the
the endowed property vests. The idol does not
map Plan-I prepared by Sri Shiv Shanker Lal,
enjoy possession of the property
Pleader/ Commissioner appointed by Court in Suit
No.1 to the extent of one third share each for using in the same manner as do natural persons. The
and managing the same for worshipping. A property vests in the idol only in
preliminary decree to this effect is passed.
However, it is further declared that the portion an ideal sense. The idol must act through some
below the central dome where at present the idol is human agency which will
kept in makeshift temple will be allotted to Hindus
in final decree. It is further directed that Nirmohi manage its properties, arrange for the performance
Akhara will be allotted share including that part of ceremonies associated
which is shown by the words Ram Chabutra and
with worship and take steps to protect the
Sita Rasoi in the said map. It is further clarified that
endowment, inter alia by bringing
even though all the three parties are declared to
have one third share each, however if while proceedings on behalf of the idol. The shebait is the
allotting exact portions some minor adjustment in human person who
the share is to be made then the same will be made
and the adversely affected party may be discharges this role.
compensated by allotting some portion of the
adjoining land which has been acquired by the 323. Nirmohi Akhara has instituted Suit 3 on the
Central Government. The parties are at liberty to ground that it is the shebait of

221
the deities of Lord Ram at the disputed site. the manager of the idol is conferred by law with the
Whether or not Nirmohi Akhara is a status of a shebait. The law

shebait, has a material bearing on the determination recognises the legal personality of the idol to
of rights inter se between facilitate the protection of the rights

the parties in Suits 3 and 5. To adjudicate on this and the duties owed to the idol. The natural
controversy, it is necessary to personality of the shebait is the

analyse the position of a shebait in our law. human agency through which the needs and
concerns of the idol are fulfilled.
PART N
325. The law expounded in 1875 by the Privy
380 Council has found resonance in a

324. An early decision was rendered by the Privy decision of this Court in 1979. In Profulla Chorone
Council in Posunno Kumari Requitte v Satya Chorone

Debya v Golab Chand Baboo.210 A suit was Requitte211, a question arose whether it was the
instituted by the shebaits of an idol founder‘s intention to confer the

against their immediate predecessor to set aside 210 (1875) 14 L Beng

two execution decrees directing LR 450 211 (1979) 3 SCC 409

the sale of the property. Analysing whether the PART N

actions of a shebait binds
381
subsequent shebaits, the Privy Council, speaking
through Justice ME Smith held: status of a shebait upon the person designated as
trustees in his will. Justice RS
―It would seem to follow that the person so
entrusted must, of necessity, be empowered to do Sarkaria, speaking for a two judge Bench of this
whatever may be required for the service of the idol Court held:
and for the benefit and preservation of its property,
at least to as great a degree as the manager of an ―20. … Property dedicated to an idol vests in it in
infant heir. If this were not so, the estate of the idol an ideal sense only; ex necessitas, the possession
might be destroyed or wasted, and its worship and management has to be entrusted to some
discontinued for want of necessary funds to human agent. Such an agent of the idol is known as
preserve and maintain them.‖ shebait in Northern India. The legal character of a
shebait cannot be defined with precision and
The Privy Council summarised in the above extract exactitude. Broadly described, he is the human
the true function and purpose ministrant and custodian of the idol, its earthly
spokesman, its authorised representative entitled to
underlying the concept of a shebait. Since, the deal with all its temporal affairs and to manage its
dedicated property vests in an idol property.‖

in an ideal sense, the shebait is entrusted with its 326. The recognition of a person or a group of
management. An idol cannot persons as shebaits is a

personally take actions required for the benefit and substantive conferment of the right to manage the
preservation of its property. affairs of the deity. A

The idol must necessarily act through a human necessary adjunct of the status of a shebait, is the
agent and it is for this reason that right to brings actions on the

222
behalf of an idol and bind it and its properties to the ―trustee‖ as they appear in Article 134 of the
outcomes. The purpose for Limitation Act 1908 apply to

which legal personality is conferred upon an idol as properties endowed to the Mahant of a Hindu mutt.
the material embodiment of The Privy Council rejected

the pious purpose is protected and realised through the contention that persons managing endowed
the actions of the human properties are in the position of

agent, that is the shebait. The shebait is entrusted trustees under English Law. Justice Ameer Ali
with the power and the duty to held:

carry out the purpose of the donor in respect of the ―It is also to be remembered that a ―trust‖ in the
idol and its properties. In the sense in which the expression is used in English
Law, is unknown in the Hindu system, pure and
vast majority of cases, a shebait is appointed in simple. Hindu piety found expression in gifts to
accordance with the terms of a idols and images consecrated and installed in
temples, to religious institutions of every
deed of dedication by which property is endowed
kind….Religious institutions, known under
to an idol. It is for the protection
different names, and regarded as possessing the
of this property that the law recognises either the same ―juristic‖ capacity, and gifts are made to
donor or a person named in the them eo nomine …When the gift is directly to an
idol or a temple, the seisin to complete the gift is
deed of endowment as the shebait. In the absence necessarily effected by human agency. Called by
of an expressly appointed or whatever name, he is only the manager and
custodian of the idol of the institution. In no case
identified shebait, the law has ensured the was the property conveyed to or vested in him, nor
protection of the properties of the idol is he a ‗trustee‘ in the English sense of the term,
although in view of the obligations and duties
by the recognition of a de facto shebait. Where a
vesting on him, he is answerable as a trustee in the
person is in complete and
general sense, for maladministration…it would
continuous management of the deity‘s affairs follow that an alienation by a manager or superior
coupled with long, exclusive and by whatever name called cannot be treated as the
act of a ―trustee‖ to whom property has been
uninterrupted possession of the appurtenant ―conveyed in trust‖ and who by virtue thereof has
property, such a person may be the capacity vested in him which is possessed by a
―trustee‖ in English law.‖ … ...Neither under the
PART N Hindu law nor in the Mahomedan system is any
property ‗conveyed‘ to a shebait or a mutavalli in
382
the case of a dedication. Nor is any property vested
recognised as a shebait despite the absence of a in him, whatever property he holds for the idol or
legal title to the rights of a the institution he
212AIR 1922 PC 123
shebait. This will be adverted to in the course of the
judgement. PART N

327. The position of a shebait in Hindu Law is 383

distinct from the position of a
holds as manager with certain beneficial interest
trustee in English Law. Before the Privy Council in regulated by custom and usage.‖ (Emphasis
Vidya Varuthi Thirtha v supplied)

Balusami Ayyar212 the question was whether the 328. The decision in Vidya Varuthi affirms the
terms ―conveyed in trust‖ and distinction between the position

223
of a shebait in Hindu Law and a trustee in English PART N
Law. Unlike in the case of a
384
trust, dedicated property does not legally vest in the
shebait. The purpose for usufruct depending again on usage and custom, if
not devised by the founder.‖ (Emphasis supplied)
which property is dedicated to an idol is executed
and protected by the shebait. 329. These observations affirm that the position of
a shebait is distinct from that
Though the dedicated property does not vest in the
shebait, they are responsible of a trustee in English law. The dedicated property
legally vests in the idol in an
for managing the properties and are answerable in
law for any mismanagement ideal sense and not in the shebait. A shebait does
not bring an action for the
of the endowed properties. The shebait holds the
property of an idol for the recovery of the property in a personal capacity but
on behalf of the idol for the
benefit of the idol. There is thus a distinction
between the proprietary right of a protection of the idol‘s dedicated property.
Ordinarily, a deed of dedication will not
trustee in English law and a shebait in Hindu Law.
Chief Justice B K Mukherjea, contain a provision for the duties of the shebait.
However, an express stipulation
in his seminal work ―Hindu Law of Religious
Charitable Trusts‖ states: or even its absence does not mean that the property
of the idol vests in the
―In English law the legal estate in the trust
property vests in the trustee who holds it for the shebait. Though the property does not legally vest
benefit of the cestui que trust. In a Hindu religions in the shebait, the shebait may
endowment, the entire ownership of the dedicated
have some interest in the usufruct generated from
property is transferred to the deity or the institution
it. Appurtenant to the duties of
itself as a juristic person, and the Shebait or
Mahant is a mere manager.‖213 a shebait, this interest is reflected in the nature of
the office of a shebait.
The above distinction was affirmed by this Court in
Profulla Chorone. In dealing 330. In Manohar Mukherji v Bhupendranath
Mukherji214, the question before
with the concept of a shebait, Justice RS Sarkaria
held: a Full Bench of the Calcutta High Court was
whether shebaitship in Hindu law is
―As regards the administration of the debutter, his
position is analogous to that of a trustee; yet, he is property or an office to which the founder of an
not precisely in the position of a trustee in the endowment is competent to
English sense, because under Hindu Law, property
absolutely dedicated to an idol, vests in the idol, appoint or nominate persons in any order of
and not in the shebait. Although the debutter never succession. Surveying the
vests in the shebait, yet, peculiarly enough, almost
in every case, the shebait has a right to a part of the precedent, Justice Mukerji held:
usufruct, the mode of enjoyment, and the amount
―…I can find no authority for the proposition that
of the
the limited ownership which a shebait, in ordinary
213 B.K. Mukherjea, cases, exercises over debuttor property is not
The Hindu Law of Religious and Charitable Trust property in the eye of Hindu law… having regard
(5th Edn. Eastern Law House, 1983) at page 204 to the rights which ordinarily attach to the office of
a shebait, the office and the property of the

224
endowment go together and that when it is a beneficial interest in the debutter property. As the
question between two persons one claiming and the Judicial Committee observed in the above case, in
other disputing a right to be the shebait, the almost all such endowments the shebait has a share
question is a question of property…The religious in the usufruct of the debutter property which
office itself, of course, cannot be the object of sale, depends upon the terms of the grant or upon
and jewels and other materials custom or usage. Even where no emoluments are
214 ILR (1933) 60 Cal 452 attached to the office of the shebait, he enjoys some
sort of right or interest in the endowed property
PART N which partially at least has the character of a
proprietary right. Thus, in the conception of
385
shebaiti both the elements of office and property, of
used in religious worship, to the custody of which duties and personal interest, are mixed up and
the alleged vendor is entitled and to the careful blended together; and one of the elements cannot
custody of which he is bound, are by all systems of be detached from the other. It is the presence of this
law and by Hindu law more emphatically than by personal or
another, absolutely extra commercium.‖ (Emphasis
215 Approved by Privy
supplied)
Council in Ganesh Chunder Dhur v Lal Behary
331. In addition to the duties that must be Dhur (1935-36) 63 IA 448, and Bhabatarini Debi v
discharged in relation to the debutter Ashalata Debi (1942-43) 70 IA 57 2161951 SCR
1125
property, a shebait may have an interest in the
usufruct of the debutter property. PART N

In this view, shebaitship is not an office simpliciter, 386

but is also property for the
beneficial interest in the endowed property which
purposes of devolution.215 This view has been invests shebaitship with the character of proprietary
affirmed by this Court in rights and attaches to it the legal incidents of
property.‖
Angurbala Mullick v Debabrata Mullick216. The
controversy in that case was The Court held that a shebait has a beneficial
interest in the usufruct of the
whether the appellant, as the widow of the shebait,
was entitled to act as the debutter property. This beneficial interest is in the
form of a proprietary right.
shebait of the idol instead of the minor son of the
shebait borne from his first Though the role of the shebait is premised on the
performance of certain duties
marriage who was the respondent. It was contended
that the office of shebaitship for the idol and the benefits are appurtenant, neither
can be separated from the
would devolve in accordance with the Hindu
Women‘s Right to Property Act other. Thus, office and property are both blended in
shebaitship, the personal
1937. Justice BK Mukherjea speaking for a four
judge Bench of this Court interest of a shebait being appurtenant to their
duties.217
accepted this contention and held:
Pujaris
―12…But though a shebait is a manager and not a
trustee in the technical sense, it would not be 332. A final point may be made with respect to
correct to describe the shebaitship as a mere office. shebaits. A pujari who conducts
The shebait has not only duties to discharge in
connection with the endowment, but he has a

225
worship at a temple is not merely, by offering and ensure the fulfilment of the purpose for which
worship to the idol, elevated to the the property was dedicated. As

status of a shebait. A pujari is a servant or a necessary adjunct of this managerial role, a

appointee of a shebait and gains no shebait may hire pujaris for the

independent right as a shebait despite having performance of worship. This does not confer upon
conducted the ceremonies for a the appointed pujaris the

long period of time. Thus, the mere presence of status of a shebait. As appointees of the shebait,
pujaris does not vest in them any they are liable to be removed

right to be shebaits. In Gauri Shankar v Ambika from office and cannot claim a right to continue in
Dutt218, the plaintiff was the office. The distinction between

descendant of a person appointed as a pujari on a shebait and a pujari was recognised by this Court
property dedicated for the in Sree Sree Kalimata

worship of an idol. A suit was instituted for Thakurani of Kalighat v Jibandhan Mukherjee.219
claiming partition of the right to A suit was instituted under

worship in the temple and a division of the Section 92 of the Code of Civil Procedure 1908 for
offerings. A Division Bench of the the framing of a scheme for

Patna High Court held that the relevant question is the proper management of the seva-puja of the Sree
whether the debutter Sree Kali Mata Thakurani

appointed the pujari as a shebait. Justice and her associated deities. A Constitution Bench of
Ramaswami held: this Court, speaking through

217 Affirmed in Badri Justice JR Mudholkar held:

Nath v Punna, AIR 1979 SC 1314; Profulla
Chorone Requitte v Satya Chorone Requitte, ―…It is wrong to call shebaits mere pujaris or
(1979) 3 SCC 409 218 AIR 1954 Pat 196 archakas. A shebait as has been pointed out by
Mukherjea J. (as he then was), in his Tagore Law
PART N Lectures on Hindu Law of Religious and Charitable
Trusts, is a human ministrant of the deity while a
387 pujari is appointed by the founder or the shebait to
conduct worship. Pujari thus is a servant of the
―7…It is important to state that a pujari or archak
shebait. Shebaitship is not mere office, it is
is not a shebait. A pujari is appointed by the
property as well.‖
Shebait as the purohit to conduct the worship. But
that does not transfer the rights and obligations of 219 AIR 1962 SC 1329
the Shebait to the purohit. He is not entitled, to be
continued as a matter of right in his office as pujari. PART N
He is merely a servant appointed by the Shebait for
the performance of ceremonies. Where the 388
appointment of a purohit has been at the will of the
334. A pujari is appointed by the founder or by a
founder the mere fact that the appointees have
shebait to conduct worship.
performed the worship for several generations, will
not confer an independent right upon the members This appointment does not confer upon the pujari
of the family so appointed and will not entitle them the status of a shebait. They
as of right to be continued in office as priest…‖
are liable to be removed for any act of
333. A shebait is vested with the authority to mismanagement or indiscipline which is
manage the properties of the deity

226
inconsistent with the performance of their duties. idols as a next friend. Mr Jain placed significant
Further, where the appointment reliance on the contention that

of a pujari has been at the will of the testator, the PART N

fact that appointees have
389
performed the worship for several generations does
not confer an independent the plaint in Suit 5 does not aver any
mismanagement by the Nirmohis. Mr S K
right upon the appointee or members of their
family and will not entitle them as of Jain urged that though the plaintiffs in Suit 5
(which was instituted in 1989) were
right to be continued in office as priests. Nor does
the mere performance of the aware of Suit 3 which was instituted by Nirmohi
Akhara (in 1959) claiming as a
work of a pujari in and of itself render a person a
shebait. shebait, the plaint in Suit 5 does not challenge the
position of Nirmohi Akhara as
An exclusive right to sue?
a shebait. Consequently, Nirmohi Akhara urged
335. The position of a shebait is a substantive that a suit by a next friend on
position in law that confers upon
behalf of the idol is not maintainable. The
the person the exclusive right to manage the argument that Nirmohi Akhara is the
properties of the idol to the
shebait of the idols and is consequently vested with
exclusion of all others. In addition to the exclusive the exclusive right to bring an
right to manage an idol‘s
action on behalf of the idols of Lord Ram was also
properties, the shebait has a right to institute supported by Dr Dhavan,
proceedings on behalf of the idol.
learned Senior Counsel appearing on behalf of the
Whether the right to sue on behalf of the idol can plaintiffs in Suit 4. He urged
be exercised only by the
that despite his submission that Suit 3 was barred
shebait (in a situation where there is a shebait) or by limitation, a dismissal of
can also be exercised by the
that suit only extinguished the remedy of Nirmohi
idol through a ‗next friend‘ has been the subject of Akhara to file a suit for
controversy in the proceedings
possession but did not extinguish the Nirmohi‘s
before us. The plaintiff in Suit 3 - Nirmohi Akhara rights as shebaits. Therefore, in
contends that the Nirmohis are
Dr Dhavan‘s submission, Nirmohi Akahara
the shebaits of the idols of Lord Ram at the continued to be shebaits and possess
disputed site. Mr S K Jain, learned
an exclusive right to sue on behalf of the idols of
Senior Counsel appearing on behalf of Nirmohi Lord Ram even in 1989. This, it
Akhara, urged that absent any
is urged, renders Suit 5 not maintainable.
allegation of maladministration or misdemeanour
in the averments in the plaint in 336. The challenge to the maintainability of Suit 5
is premised on the contention
Suit 5, Devki Nandan Agarwal could not have
maintained a suit on behalf of the that only a shebait can sue on behalf of the idol.
The question of who can sue on

227
behalf of the idol arises due to the unique nature of began running against the shebait. In doing this, the
the idol. The idol is a juristic Privy Council located the

person and the owner of the debutter property, but right to sue as vested in the shebait and not the idol.
(as we have discussed earlier) Ultimately, the Privy Council

only in an ideal sense. In law, the idol is capable of held that the suit was not barred by limitation as the
suing and being sued in its shebait was a minor at the

own name. However, for all practical purposes any time of the dispossession. Thus, it was not relevant
suit by the idol must whether or not limitation ran

necessarily be brought by a human actor. In against the deity‘s right to sue as such right vested
Maharaja Jagadindra Nath Roy in the shebait.

PART N 337. Ordinarily, the right to sue on behalf of the

idol vests in the shebait. This
390
does not however mean that the idol is deprived of
Bahadur v Rani Hemanta Kumari Debi220 the its inherent and independent
plaintiff instituted a suit as shebait
220 (1903-04) 31 IA
of an idol alleging dispossession of certain lands by 203
the defendant. The
PART N
defendant resisted the suit on the ground of
limitation. The shebait alleged that at 391

the time of the dispossession, he was a minor and right to sue in its own name in certain situations.
therefore the period of The property vests in the idol. A

limitation did not begin against him until he right to sue for the recovery of property is an
attained majority. The Privy Council, inherent component of the rights

speaking through Sir Arthur Wilson held: that flow from the ownership of property. The
shebait is merely the human actor
―But assuming the religious dedication to have
been of the strictest character, it still remains that through which the right to sue is exercised. As the
the possession and management of the dedicated immediate protector of the
property belongs to the shebait. And this carries
with it the right to bring whatever suits are idols and the exclusive manager of its properties, a
necessary for the protection of the property. Every suit on behalf of the idol must
such right of suit is vested in the shebait, not in the
be brought by the shebait alone. Where there exists
idol. And in the present case the right to sue
a lawfully appointed shebait
accrued to the Plaintiff when he was under age.
The case therefore falls within the clear language who is able and willing to take all actions necessary
of sec. 7 of the Limitation Act which says that: ―if to protect the deity‘s interests
a person entitled to institute a suit … be, at the time
from which the period of limitation is to be and to ensure its continued protection and
reckoned, a minor,‖ he may institute the suit after providence, the right of the deity to
coming of age within a time, which in the present
case would be three years.‖ (Emphasis supplied) sue cannot be separated from the right of the
shebait to sue on behalf of the
The Privy Council examined whether, at the time
of the dispossession, limitation deity. In such situations, the idol‘s right to sue
stands merged with the right of the

228
shebait to sue on behalf of the idol. This filed in the capacity of a shebait, it is implicit that
understanding is summarised by Justice such a suit is on behalf of and

B K Mukherjea in ―The Hindu Law of Religious for the benefit of the idol.
and Charitable Trusts‖ in the
A suit by a worshipper or person interested
following manner:
339. There may arise a situation where a shebait
―This decision [in Jagadindra Nath], therefore, has been derelict in the
establishes three things: - (1) That the right of a
suit in respect of the deity‘s property is in the performance of duties, either by not taking any
Shebait; action or by being complicit in the

(2) this right is a personal right of the Shebait wrongful alienation of the endowed property. In
which entitles him to claim the privilege afforded such a situation, where a suit is
by the Limitation Act; and
instituted for the recovery of the deity‘s property,
(3) the Shebait can sue in his own name and the the action is against both the
deity need not figure as a plaintiff in the suit,
shebait and the person possessing or claiming the
though the pleadings must show that the Shebait is
property in a manner hostile to
suing as such.‖221
the deity. The remedy for an action against
338. A suit by a shebait on behalf of an idol binds
mismanagement simpliciter by a
the idol. For this reason, the
shebait can be found in Section 92 of the Civil
question of who can sue on behalf of an idol is a
Procedure Code 1908. However,
question of substantive law.
where an action against a stranger to the trust is
Vesting any stranger with the right to institute
contemplated, the remedy is not
proceedings on behalf of the idol
221 B.K. Mukherjea, The Hindu Law of Religious a suit under Section 92 of the Civil Procedure Code
and Charitable Trust (5th Edn. Eastern Law House, 1908 but a suit in general
1983) at pages 257-258
law.
PART N
PART N
392
393
and bind it would leave the idol and its properties
at the mercy of numerous 340. In Vemareddi Ramaraghava Reddy v Konduru
Seshu Reddy222, the
individuals claiming to be ‗next friend‘. Therefore,
the interests of the idol are plaintiffs accused the defendants, who were the
managers of the temple and its
protected by restricting and scrutinising actions
brought on behalf of the idol. For properties, of mismanagement. Subsequently, a
compromise decree was
this reason, ordinarily, only a lawful shebait can
sue on behalf of the idol. When executed between the defendants and the Hindu
Religious Endowments Board
a lawful shebait sues on behalf of the deity, the
question whether the deity is a which inter alia declared the temple properties as
the personal property of the
party to the proceedings is merely a matter of
procedure. As long as the suit is defendants. The plaintiffs sought a declaration
under Section 42 of the Specific

229
Relief Act 1963 that the provision of the to bring a suit on behalf of the idol. In addition to
compromise decree stating that the being convenient and providing

temple properties were the absolute personal immediate recourse for the idol, it also provides a
properties of the defendant was not valuable check against

binding on the temple. The defendants resisted this strangers instituting suits, the outcomes of which
contention on the ground that may adversely impact the idol

the plaintiffs had no legal interest in the temple or without the knowledge of the idol or the shebait.
temple property and were mere But there may be cases where

worshippers whose suit could not bind the temple. the conduct of a shebait is in question. In certain
Justice V Ramaswami, cases, where the shebait itself is

speaking for a two judge Bench of this Court held: negligent or sets up a claim hostile to the idol, it is
open for a worshipper or a
―13. … As a matter of law the only person who
can represent the deity or who can bring a suit on next friend interested in protecting the properties of
behalf of the deity is the Shebait, and although a the idol to file a suit to
deity is a judicial person capable of holding
property, it is only in an ideal sense that the remedy the situation. In the above case, by entering
property is so held. The possession and into the compromise decree
management of the property with the right to sue in
declaring the temple properties as personal
respect thereof are, in the normal course, vested in
properties of the defendant shebaits,
the Shebait but where, however, the Shebait is
negligent or where the Shebait himself is the guilty the defendants set up a title contrary to the title of
party against whom the deity needs relief it is open the idol itself. This Court held
to the worshippers or other persons interested in the
religious endowment to file suits for the protection that it was hence permissible for the plaintiffs, who
of the trust properties. It is open, in such a case, to were worshippers, to maintain
the deity to file a suit through some person as next
friend for recovery of possession of the property a suit invalidating the compromise decree.
improperly alienated or for other relief. Such a next
342. However, in Vemareddi Reddy, the suit was
friend may be a person who is worshipper a of the
not instituted on behalf of the
deity or as a prospective Shebait is legally
interested in the endowment. In a case where the deity. The suit was instituted in a personal capacity
Shebait has denied the right of the deity to the by the worshipper seeking a
dedicated properties, it is obviously desirable that
the deity should file the suit through a disinterested declaration that the property in question was
next friend, nominated by the court…‖ (Emphasis debutter property. In this context,
supplied)
the court held:
222 1966 Supp SCR 270
―11. … If a shebait has improperly alienated trust
PART N property a suit can be brought by any person
interested for a declaration that such alienation is
394 not binding upon the deity but no decree for
recovery of possession can be made in such a suit
341. A necessary adjunct of managing of the
unless the plaintiff in the suit has the present right
temple properties is the right to
to the possession. Worshippers of a temple are in
sue for recovery of the said properties. Ordinarily a the position of cestuui que trustent or beneficiaries
shebait alone will be entitled in a spiritual sense. … Since worshippers do not
exercise the deity‘s power of suing to protect its

230
own interests, they are not entitled to recover interest and fails to take action to safeguard its
possession of the property improperly alienated interest. On principle we do not see any
justification for denying such a right to the
PART N worshipper. An idol is in the position of a minor
when the person representing it leaves it in a lurch,
395
a person interested in the worship of the idol can
by the Shebait, but they can be granted a certainly be clothed with an ad hoc power of
declaratory decree that the alienation is not binding representation to protect
on the deity…‖ (Emphasis supplied) 223 (1967) 2 SCR 618

The significance of the distinction between suing PART N

on behalf of the deity and the
396
institution of a suit in a personal capacity for the
its interest. It is a pragmatic, yet a legal solution to
benefit of the deity will be
a difficult situation. Should it be held that a
adverted to shortly. Shebait, who transferred the property, can only
bring a suit for recovery, in most of the cases it will
343. In Bishwanath v Sri Thakur Radha be an indirect approval of the dereliction of the
Ballabhji223 a next friend of the idol Shebait‘s duty, for more often than not he will not
admit his default and take steps to recover the
challenged the alienation of its properties by the property, apart from other technical pleas that may
defendant shebait. One of the be open to the transferee in a suit. Should it be held
that a worshipper can file only a suit for the
defences taken by the shebait was that the next
removal of the Shebait and for the appointment of
friend was not capable of
another in order to enable him to take steps to
maintaining a suit on behalf of the deity. Justice recover the property, such a procedure will be
Subba Rao, speaking for a rather prolonged and a complicated one and the
interest of the idol may irreparably suffer. That is
three-judge Bench of this Court affirmed the why decisions have permitted a worshipper in such
principle that ordinarily a shebait circumstances to represent the idol and to recover
the property for the idol. It has been held in a
possesses the exclusive right to sue on behalf of the number of decisions that worshippers may file a
idol: suit praying for possession of a property on behalf
of an endowment…‖ (Emphasis supplied)
―9. Three legal concepts are well settled: (1) An
idol of a Hindu temple is a juridical person; (2) 344. The decision reiterates the holding in
when there is a Shebait, ordinarily no person other Vemareddi Reddy that where a
than the Shebait can represent the idol; and (3)
worshippers of an idol are its beneficiaries, though shebait refuses to act for the benefit of the idol, or
only in a spiritual sense. It has also been held that where the shebait‘s actions are
persons who go in only for the purpose of devotion
have, according to Hindu law and religion, a prejudicial to the interest of the idol, an alternative
greater and deeper interest in temples than mere method must be provided for
servants who serve there for some pecuniary
protecting the idol‘s interests. In such cases, a next
advantage…‖
friend interested in the
The learned judge then evaluated when persons
protection of the endowed properties is vested with
other than a shebait may be
the right to institute a suit.
entitled to maintain a suit on behalf of the deity:
Where an action prejudicial to the interests of the
―10. The question is, can such a person represent idol is taken by the shebait, it is
the idol when the Shebait acts adversely to its

231
unlikely that the shebait will institute a suit exercise the deity‘s right to sue, this matter must be
challenging its own actions. Therefore, considered.

it becomes necessary to confer on a next friend the 347. In this regard, Dr Dhavan brought to our
right to bring an action in law notice the separate opinion of

against the shebait and the stranger who threatens Justice Pal in Tarit Bhushan Rai v Sri Sri Iswar
the idol‘s interests. Sridhar Salagram Shila

345. It is important to note that unlike in Thakur224, as a member of a Division Bench of

Vemareddi Reddy, this Court in the Calcutta High Court. The

Bishwanath permitted worshippers to sue on behalf case arose from a rather unique factual background.
of the idol. The suit in A suit was instituted by

Bishwanath was not instituted by a worshipper in Anupama, who was not the shebait but the daughter
their personal capacity, but of the then shebait.

rather as a representative of the idol to the Anupama sought to stay the sale of certain property
exclusion of the shebait. The next on the ground that the

PART N property was absolute debutter property.

Anupama‘s suit was subsequently
397
dismissed and fresh proceedings were instituted by
friend stepped into the shoes of the shebait for the the shebaits proper. Justice
limited purpose of the
Nasim Ali and Justice Pal both held that Anupama
litigation. was not a shebait and thus the

346. The position in law with respect to when a 224 AIR 1942 Cal 99
worshipper may institute
PART N
proceedings is settled. A worshipper can institute a
suit to protect the interests of 398

the deity against a stranger where a shebait is dismissal of her suit was irrelevant for the purposes
negligent in its duties or takes of deciding the fresh suit.

actions that are hostile to the deity. The question However, Justice Pal further observed:
whether the remedy available to
―Persons having individual rights under such
the worshipper is a suit in a personal capacity or a endowments can bring suits to enforce such
suit on behalf of the idol (as individual rights by an ordinary suit in their own
name without being obliged to bring a suit in the
next friend) is one which must be answered. The name of the idol. This right reserved to the
suit in Vemareddi Reddy was a worshippers sufficiently safeguards the interest of
the worshippers or other persons interested in the
suit filed by worshippers in their personal capacity
debutter. At the same time it obviates the risk of
and the court had no occasion
jeopardising the interests of the idol by allowing it
to determine whether a suit by a next friend on to be affected by the intermeddling of persons
behalf of the idol itself would be whose fitness has never been enquired into and
adjudicated upon.‖ (Emphasis supplied)
maintainable. However, given the express
observations that a worshipper cannot Justice Pal opines that even in situations where the
shebait acts contrary to the

232
interests of the idol, a worshipper cannot sue on behalf of the deity without establishing the bona
behalf of the idol, but only in a fide intentions and qualifications

personal capacity. This stems from the concern of the next friend put the deity‘s interest at risk?
that persons whose fitness or
349. A suit by a worshipper in their personal
bona fides has not been enquired into or capacity may be an appropriate
adjudicated upon by the courts may be
remedy in certain cases. For example, where a
able to adversely bind the idol and its properties. In shebait denies worshippers
this view, the worshipper
access to the idol, a suit by the worshipper in a
does not sue on behalf of the deity, but may, at the personal capacity to grant access
very highest, obtain a
to the idol may constitute a suitable remedy against
declaratory decree challenging the shebait‘s actions the shebait. A further benefit
as not binding on the deity.
of confining the suits of worshippers to suits filed
348. Where a shebait acts prejudicially to the in a personal capacity is that in
deity‘s interests, there thus exist
cases concerning the recovery of property, a suit by
two views on the remedies available to the a worshipper in a personal
interested worshipper. The position
capacity does not raise the question as to whom the
taken by this Court in Bishwanath is that a possession of the land
worshipper can sue as a next friend
would be given. However, where a suit is filed by a
on behalf of the deity. As next friend, the next friend on behalf of the
worshipper directly exercises the deity‘s
deity itself, a problem arises: in a suit for the
right to sue. The alternative view taken by Justice recovery of property on behalf of the
Pal in Tarit Bhushan Rai and
idol, the court cannot deliver possession of the
as observed by this Court in Vemareddi Reddy is property to the next friend. The
that a worshipper can file a
next friend is merely a temporary representative of
suit in a personal capacity to protect the deity‘s the idol for the limited
interests but cannot sue directly
purposes of the individual litigation. Where a
on behalf of the deity although the suit may be for worshipper can only sue in their
the benefit of the deity. In this
personal capacity, the question of the delivery of
PART N possession does not arise.

399 350. A suit by a worshipper in their personal

capacity cannot however canvas
view, the deity is not bound by the suit of the
worshippers unless the remedy the range of threats the idol may face at the hands
of a negligent shebait and it
provided is in rem in nature. The matter raises two
questions: First, is a suit filed may be necessary for the court to permit the next
friend to sue on behalf of the
by a worshipper in a personal capacity a sufficient
and expedient method to idol itself to adequately protect the interests of the
idol. For example, where a
protect the interests of the deity? Second, does
allowing a next friend to sue on PART N

233
400 persons having an interest in the trust and having
obtained the [leave of the Court,] may institute a
shebait fails to file a suit for possession on behalf suit, whether contentious or not, in the principal
of a deity, a suit by a Civil Court of original jurisdiction or in any other
Court empowered in that behalf by the State
worshipper in their personal capacity is inadequate.
Government within the local limits of whose
Rather, what is required is a
jurisdiction the whole or any part of the subject-
suit by a next friend on behalf of the idol for the matter of the trust is situate to obtain a decree— (a)
recovery of possession of the removing any trustee; (b) appointing a new trustee;
(c) vesting any property in a trustee; [(cc) directing
property. It is true that possession will not be a trustee who has been removed or a person who
delivered to the next friend. has ceased to be a trustee, to deliver possession of
any trust property in his possession to the person
However, the court can craft any number of reliefs, entitled to the possession of such property;] (d)
including the framing of a directing accounts and inquiries; (e) declaring what
proportion of the trust property or of the interest
scheme upon an application by the Advocate
therein shall be allocated to any particular object of
General or two persons under
the trust; (f) authorising the whole or any part of
Section 92 of the Civil Procedure Code 1908225, to the trust property to be let, sold, mortgaged or
ensure that the property is exchanged; (g) settling a scheme; or (h) granting
such further or other relief as the nature of the case
returned to the idol. Where the inaction or mala may require.
fide action of the shebait has
PART N
already been established, such a scheme may be the
appropriate remedy, 401

however this will necessarily depend on the facts contextual and must be framed by the court in light
and circumstances of every of the parties before it and the

case. circumstances of each case.

351. In view of these observations, it is apparent 352. This, however, brings us to the second
that where the interests of the question whether allowing a next

idol need to be protected, merely permitting friend to sue on behalf of the idol puts the idol at
interested worshippers to sue in their risk. The idol and its properties

personal capacity does not afford the deity must be protected against the threat of a wayward
sufficient protections in law. In certain ‗next friend‘. Where the

situations, a next friend must be permitted to sue on shebait acts in a mala fide manner, any person
behalf of the idol – directly claiming to be a ‗next friend‘ may

exercising the deity‘s right to sue. The question of sue. Such a person may in truth have intentions
relief is fundamentally hostile to the deity and sue

under false provenance. Even a well-intentioned

worshipper may sue as a next
225 92. Public charities.—(1) In the case of any
friend and purely due to financial constraints or
alleged breach of any express or constructive trust
negligence lose the suit and
created for public purposes of a charitable or
religious nature, or where the direction of the Court adversely bind the deity. A solution offered by
is deemed necessary for the administration of any Justice Pal in Tarit Bhushan Rai,
such trust, the Advocate-General, or two or more

234
and urged by Dr Dhavan in the present sue on behalf of the deity itself, provided that if the
proceedings, is that only court appointed next friend‘s bona fides are

next friends may sue on behalf of the idol. No contested, the court must scrutinise the intentions
doubt this would satisfy the court and capabilities of the next

that the next friend is bona fide and can friend to adequately represent the deity. The court
satisfactorily represent the deity. may do so of its own accord,

353. It is true that unless the fitness of the next ex debito justitae.
friend is tested in some manner,
The competence of the third plaintiff
an individual whose bona fides has not been
determined may represent and bind 354. In the present proceedings, both Mr S K Jain
and Dr Dhavan urged that
the idol to its detriment. However, it would be
unnecessarily burdensome to the third plaintiff in Suit 5 was not fit to represent
the first and the second
require every next friend to first be appointed by a
court or for a court to find a plaintiffs. Suit 5 was instituted in 1989 by Deoki
Nandan Agarwal, a Vaishnavite.
disinterested person to represent the deity. The
deity‘s interests would be The principal deity of Vaishnavas is Lord Vishnu.
The Vaishnava sect worships
sufficiently protected if, in cases where the bona
fides of the next friend are Lord Ram as one of the many avatars of Lord
Vishnu. Deoki Nandan Agarwal
contested by another party, the court substantively
examines whether the next was appointed as next friend to the first and the
second plaintiffs by an order of
friend is fit to represent the idol. In an appropriate
case, the court can do so of its the Civil Judge dated 1 July 1989.

own accord where it considers it necessary to 355. A Mohd. Hashim filed a civil miscellaneous
protect the interest of the deity. In application226 challenging the

the absence of any objection, and where a court appointment of Shri Deoki Nandan Agarwal. The
sees no deficiencies in the relevant enquiry is whether any

PART N substantial contest was raised to the bona fides of

the third plaintiff to represent
402
the first and second plaintiff. The application
actions of the next friend, there is no reason why a stated:
worshipper should not have
226 CM Application No.
the right to sue on behalf of the deity where a 10(0) of 1989 in Regular Suit No. 236 of 1989.
shebait abandons his sacred and
PART N
legal duties. Very often, worshippers are best
placed to witness and take action 403

against any maladministration by a shebait. ―5. That the alleged plaintiffs 1 and 2, taking into
Therefore, where a shebait acts account the plaint averments to be gospel truth are
not legal persons, and, as such, suit being not for
adverse to the interests of the deity, a worshipper the leg 0000al person the question of appointment
can, as next friend of the deity, of next friend could not be considered and without

235
prima facie satisfying that the suit has been filed by PART N
a legal person the question of appointment of next
friend could not be considered. 8. That for 404
appointment of next friend there has to be an
the first and the second plaintiffs. By an order
averment that the alleged next friend has got no
dated 25 April 2002, Dr T P Verma
interest adverse to the interest of the next person
for whom he is being appointed next friend and in was appointed as next friend by the Allahabad
the absence of any averment regarding the same High Court. Subsequently, an
and without satisfying about absence of adverse
interest by the court the order appointing plaintiff application was filed to allow Triloki Nath Pande
no. 3 as a next friend is bad and illegal.‖ (Emphasis to replace Dr T P Verma as next
supplied)
friend of the first and the second plaintiffs. This
In para 5 of the application, the applicant application was dismissed by the
questioned the juristic personality of the
Allahabad High Court. On appeal, by an order
first and the second plaintiff. It was averred that dated 8 February 2010, this Court
absent an established juristic
held:
person, the question of appointing a next friend did
not arise. Be that as it may, ―3. Mr. K.N. Bhat, learned senior counsel
appearing on behalf of the appellants very earnestly
the averment cannot be read as challenging the argues that instead of Dr. Thakur Prsad Verma, Mr.
bona fides of the third plaintiff. In Triloki Nath Pande be appointed as next friend of
appellant-plaintiff Nos. 1 & 2 under the provisions
para 8, the applicant stated that any application for of Order XXXII Rule 8 of Code of Civil Procedure
appointment of a next friend since Dr. Verma has serious health problems. He
futher points out that insofar as the costs already
must be accompanied by a specific averment that
incurred are concerned, the present next friend Dr.
there is no interest adverse to
Verma shall give an undertaking to the High Court
the deity the person seeks to represent. Further, the indicating therein that he would be responsible for
applicant must satisfy the the costs already incurred. 4. The other side has no
objections for this arrangement. In that view, it is
court of the absence of an adverse interest. It is true not necessary for us to examine the correctness or
that where the fitness of the otherwise of the impugned order passed by the
High Court. If the aforesaid undertaking is given
next friend is in dispute the court should scrutinise and the willingness of Mr. Triloki Nath Pandey is
the bona fides of the next indicated to the High Court, in that case, Mr.
Triloki Nath Pandey shall act as a next friend of
friend. However, a bare allegation that is not
appellant-plaintiff Nos. 1 and 2 subject to the
substantiated with any evidence
undertaking given by Dr. Verma.‖
does not constitute a contest to the bona fides of the
By the order of this Court, Triloki Nath Pande was
next friend. Barring a stray
permitted to act as next friend
statement in para 8, the application did not
of the first and the second plaintiffs. No objection
substantiate or raise contest to the
was raised to the appointment
bona fides of the third plaintiff.
of Triloki Nath Pande in the proceedings before
356. Deoki Nandan Agarwal passed away on 8 this Court. There was no reason
April 2002 and an application
for this Court to examine the correctness of the
was made to the court to allow Dr T P Verma to be order of the High Court
appointed as next friend of

236
dismissing the application to permit TP Verma to endowment may institute a suit on behalf of the
retire from acting as the next idol; and (iii) The exact nature of

friend. The Allahabad High Court subsequently the interest possessed by the next friend, and
appointed Triloki Nath Pande as whether the next friend is bona fide

next friend by an order dated 18 March 2010. are matters of substantive law. If contested, it must
be adjudicated upon by the
PART N
court.
405
The maintainability of Suit 5 hinges on the
357. Where the fitness of the next friend is in question whether Nirmohi Akhara were
dispute the court should scrutinise
shebaits, and whether they have acted in a manner
the bona fides of the next friend. However, in the prejudicial to the interests of
present case, this enquiry is not
the idol. It is to this that issue we must now turn.
necessary as the third plaintiff in Suit 5 has been
appointed as next friend of the PART N

first and the second plaintiffs under the orders of 406

the court. With the appointment
During the oral arguments before this court, a
of Triloki Nath Pande, this Court has applied its question was put to Mr Jain
mind to the question and
whether by challenging the maintainability of the
permitted Triloki Nath Pande to act as next friend idol‘s suit, Nirmohi Akhara have
of the first and the second
set up a claim hostile to the interests of the idol. In
plaintiffs. Given the scrutiny that the appointment response, Mr S K Jain
of the next friend has been
submitted to this Court a statement conditionally
subject to in the present proceedings there is no modifying the position of the
merit in the argument that the
Nirmohi Akhara with respect to the maintainability
third plaintiff in Suit 5 is not fit to institute a suit as of Suit 5 stating that the
the next friend of the first and
Nirmohi Akhara would not press the issue of
the second plaintiffs. maintainability in suit 5 provided that

Nirmohi Akhara and shebaiti rights the plaintiffs in Suit 3 do not question the shebaiti
rights of Nirmohi Akhara. It was
358. Where there exists an express deed of
dedication identifying the shebait, submitted that Nirmohi Akhara can independently
maintain their suits as shebaits.
the position in law with respect to who can sue on
behalf of an idol is as follows: 359. The statement by Nirmohi Akhara does not
alter its claim that it is the
(i) The right to sue vests exclusively in the lawfully
appointed shebait; however, shebait of the idols of Lord Ram. It merely
stipulates that, in the event that the
(ii) Where the shebait acts in a manner negligent or
hostile to the interests of the plaintiffs in Suit 5 choose to recognise Nirmohi
Akhara as the shebait of the idols,
idol through express action or inaction, any person
who is interested in the

237
it will no longer challenge the maintainability of Lord Ram. If this is answered in the affirmative,
Suit 5. Such a position is the second question that arises

untenable in a court of law. Nirmohi Akhara has is whether Nirmohi Akhara have acted in a manner
consistently taken the stand that prejudicial to the interest of

the Nirmohis are shebaits of the idols of Lord Ram. the idol. If the Nirmohi Akhara are found to be the
If this Court finds that they de facto shebaits and have not

are the shebait of the idols, they alone can sue on acted prejudicially, Suit 5 is not maintainable as it
behalf of the idols and Suit 5 is the shebait that enjoys the

instituted by a next friend would not be exclusive right to sue on behalf of the deity.
maintainable, absent an adjudication by Alternatively, if the Nirmohi Akhara

this Court that the Nirmohis have acted contrary to are found not to be de facto shebaits of the idols, or
the interests of the idol. are found to have acted

360. The present case does not concern an express prejudicially with respect to the idols, the suit by
deed of dedication the next friend is maintainable.

identifying a shebait. Rather, it is the submission With this, we turn to the question whether Nirmohi
of Nirmohi Akhara that by virtue Akhara are shebaits de facto.

of their long-standing presence at the disputed site, Rights of a de facto shebait to sue
and their exercise of certain
362. The rights of a de facto shebait to institute
actions with respect to the idol, they are shebaits de suits on behalf of the deity can
facto. Further, the unique
be traced to two early decisions of the Privy
nature of the present proceedings is that the suit Council: Mahant Ram Charan Das v
instituted by the next friend,
Naurangi Lal227 and Mahadeo Prasad Singh v
thirty years after the suit by Nirmohi Akhara, is Karia Bharti228. In Mahant Ram
being adjudicated upon along-side
Charan Das, the Mahant of a Paliganj mutt
PART N executed a lease for 70 acres of the

407 mutt‘s land and subsequently executed a sale deed

subject to the lease. Upon
with the suit filed by the alleged shebait, Nirmohi
Akhara. The consequence of his death, another person claiming to be Mahant
took possession and
this is that when the suit of the next friend was
instituted in 1989, no 227 AIR 1933 PC 75
228 AIR 1935 PC 44
determination had yet been made that Nirmohi
Akhara was a shebait. PART N

361. The present proceedings are of a composite 408

nature, hence the question of
subsequently surrendered all his rights by way of a
the maintainability of Suit 5 must be answered in a registered sale deed to the
staggered manner. The first
plaintiff who was the Mahant of another mutt (of
question is whether the Nirmohi Akahara are the de which the Paliganj mutt was a
facto shebaits of the idols of

238
subordinate). The plaintiff instituted a suit claiming 75 (1), a person in actual possession of the math is
that there was no necessity entitled to maintain

warranting the execution of the lease deed and the PART N

subsequent sale deed. On the
409
question of maintainability of the suit at the behest
of the plaintiff, the Privy a suit to recover property appertaining to it, not for
his own benefit, but for the benefit of the math.‖
Council, speaking through Lord Russell, held:
The Privy Council noted the following: (i) Karia
―…Their Lordships, however are not now was recognised as a mahant by
concerned with any question of title because both
the Courts below have found that the plaintiff is the the villagers; (ii) The revenue record reflected
person in actual possession of the Paliganj mutt and Karia‘s name; and (iii) It was not
as such entitled to maintain a suit to recover
suggested that there existed any dispute to his title
property not for his own benefit but for the benefit
to the office of the Mahant. It
of the mutt.‖
is on the basis of these considerations that the Privy
363. In Mahadeo Prasad Singh, a village which
Council held that the rights
formed part of the estate
exercised by Karia were in the nature of a Mahant.
annexed to a mutt was sold by the Mahant in 1914.
The considerations outlined
Upon his death in 1916, the
above weighed with the Privy Council in its
suit in question was instituted in 1926 challenging
analysis of whether the rights
the alienation by a person
exercised were in the nature of those exercised by a
alleging to be the Mahant of the mutt. One
Mahant.
objection to the suit was that the
364. Though both the decisions of the Privy
respondent was not entitled to maintain the suit as
Council adverted to above were in
he was neither the chela of
the context of the right of a Mahant to bring an
the previous Mahant, nor was he entitled to be the
action on behalf of a mutt, the
Mahant in any other capacity.
position in law that a de facto Mahant is entitled to
Rejecting this contention, the Privy Council,
institute an action on behalf of
speaking through Sir Shadi Lal held:
the mutt for its benefit has equally been applied to
―There can be little doubt that Karia has been
a de facto shebait of an idol
managing the affairs of the institutions since 1904,
and has since the death of Rajbans been treated as and its properties. In Panchkari Roy v Amode Lal
its mahant by all the persons interested therein. The Burman229, Ramdas Mohunt,
property entered in the revenue records in the name
of Rajbans was, on his death, mutated to Karia, and by virtue of a will, dedicated property to certain
it is not suggested that there is any person who idols and appointed his widow as
disputes his title to the office of the mahant. In
these circumstances their Lordships agree with the the manager of the property till the attainment of
High Court that Karia was entitled to recover for the age of majority of their
the benefit of the math the property which
daughter, at which point, she would take over as a
belonged to the math and is now wrongly held by
shebait. The widow sold the
the appellants. They are in no better position than
trespassers. As observed by this Board in 1933 PC property as secular property and the daughter, upon
attaining majority, alleged

239
that though the property was secular, it devolved of the debutter property and was exercising all the
upon her by the virtue of the rights of a shebait. The

will. She sold the property to another party. The paramount interest in the protection of the debutter
plaintiff, claiming to be the property underlines the

religious preceptor of the debutter instituted a suit recognition of a de facto shebait. Where there is no
alleging that the idols were de jure shebait, the court will

handed over to him. The question before the court not countenance a situation where a bona fide
was whether the plaintiff, who litigant who has exercised all the

was not a member of the family or named in the managerial rights over the debutter property cannot
will, could validly institute a suit be recognised in law as the

229 (1937) 41 CWN protector of the property. It is only for the

1349 paramount interest of the institution that

PART N the right to sue is conceded to persons acting as

managers though lacking a
410
legal title of a manager.
in a private endowment. The relevant question
before the Calcutta High Court PART N

was whether the plaintiff was a de facto shebait. 411

Justice BK Mukherjea (as he
366. This rationale was outlined by the Madras
then was) held: High Court in Subramania

―The Judicial Committee in the case of Ram Gurukkal v Abhinava Poornapriya A Srinivasa Rao
Chandra v. Nourangi Lal (4) and again in Mahadeo Sahib230. The Court of
Prosad Singh v. Karia Bharti (5) laid down that a
person in actual possession of the Math is entitled Wards dismissed the ‗archaka‘ in possession of
to maintain a suit to recover property appertaining lands belonging to a temple on
to it not for his own benefit but for the benefit of
the ground that he had failed to render services and
the Math…There may be and, in fact there is
account for certain charges
difference between a Math and an idol but I do not
see any reason why a de facto shebait cannot be made on the property. A suit was then filed by the
allowed to sue in case of family endowment or Jagirdar represented by his
private debottar….In order to make a person a de
facto shebait it is necessary, however, that he next friend the manager of the estate under the
should be in actual possession of the office and the Court of Wards as a trustee of
debottar estate….The de facto shebait would, in my
opinion, be one who exercises all the functions of a the temple to recover possession. The order of
shebait and is in possession of the debottar property dismissal was passed after the
though the legal title may be lacking.‖ (Emphasis
death of the previous Jagirdar. It is after the suit
supplied)
was instituted and before the
365. Where a person claims to be a shebait despite
decision in the suit that a notification was passed
the lack of a legal title, the
making the new Jagirdar a ward
relevant enquiry before the Court is whether the
under the Act. The question arose as to whether the
person was in actual possession
order of dismissal was

240
validly passed. The Court held that where the the institution can validly pass an order dismissing
successor of the Jagirdar took no a temple servant or officer, provided that the
dismissal is for good grounds and that the
step to assume control, the Court of Wards procedure is one to which no objection can be
assumed the position of a de facto taken…There is moreover no doubt as to the
capacity of a de facto trustee in possession and
trustee. Justice Wodsworth held:
management of a temple to bring a suit for the
―It is the duty of the Court to protect trust recovery of temple lands.‖
property from misappropriation and diversion from
In this view, a person in actual management and
the objects to which it was dedicated. When trust
acting bona fide for the interests
property is without a legal guardian owing to
defects in the machinery for the appointment of a of the institution can bring a claim for the recovery
trustee or owing to the unwillingness of the legal of temple property as a de
trustee to act, it would be a monstrous thing if any
honest person recognised as being in charge of the facto shebait.
institution and actively controlling its affairs in the
interests of the trust should not be entitled, in the 368. It is relevant here to advert in some detail to
absence of any one with a better title to take those the Full Bench judgment of
actions which are necessary to safeguard the
the Madras High Court in Sankarnarayanan Iyer v
objects of the trust.‖
Sri Poovananathaswami
367. This observation of the Madras High Court
Temple231. In this case, the de jure trustee
merits a closer look for two
alienated the properties of a temple
reasons: First, the Court held that the right to bring
and his whereabouts were not known. The
an action to protect the
succeeding trustee appointed under a
interest of the trust vests in a person who is
compromise decree passed by the court instituted a
‗recognised as being in charge of the
suit for the recovery of
institution and actively controlling its affairs‘. A
possession of the suit property as the property of
single or stray act of management
the temple. It was contended
230 AIR 1940 Mad 617
that independent of the compromise decree, he was
PART N vested with the right to

412 institute a suit for the protection of the debutter

properties as the de facto
does not entitle a person to be determined as a de
facto shebait. The relevance manager. Chief Justice P V Rajamannar held:

of this observation shall be considered shortly. 231 AIR 1949 Mad 721
Second, the de facto shebait is
PART N
vested with a right to bring an action only in the
413
absence of a person with a better
―In the case of these endowments the so-called
title i.e. the de jure shebait. With the above
trustee is not really a trustee, in the technical sense,
conditions, the Court held:
in whom the property is vested. He is really a
―…I am moreover inclined to think, quite apart manager (even in cases where he also has a
from these statutory provisions, that a de facto beneficial interest in the usufruct) and the title
trustee of a Hindu temple in actual management of always is vested in the idol or the institution. In
that temple and acting bona fide in the interests of either case, the analogy is to that of an individual

241
having a manager to carry on the administration of Consistent with the jurisprudence on the rights of a
his affairs and properties. Viewed in this light, the shebait with respect to the
position reduces itself to this. In some cases, the
manager has a rightful claim to the office of properties of an endowment, a de facto shebait is
manager, in other cases, his only claim is that he is entrusted with the power and
in actual possession of the office. ―De facto‖
the duty to carry out the purpose of the debutter in
means, ―by the title of possession‖, in antithesis to
respect of the idol and its
―de jure‖ i.e., ―by the title of right‖. So long as
the action is for the benefit of the real owner, properties. Though the shebait may have an interest
namely, the idol or the mutt, and the person in the usufruct of the
bringing the action is the only person who is in
management of the affairs of the idol or the mutt debutter property, the de facto shebait is not vested
for the time being, there is no reason why such with an independent right of
person should not be allowed to maintain the action
on behalf of the idol or the mutt.‖ (Emphasis title over the debutter property. Thus, where a de
supplied) facto shebait raises an

The above observations clarify that a person independent claim to the debutter property to the
claiming to be de facto shebait must idol, it assumes the position of a

be in exclusive possession of the debutter property trespasser and no action at its behest is
and must be the only person maintainable. A claim raised by a shebait

in management of the property. adverse to the idol defeats the very purpose for
which shebaits are vested with
369. In his separate opinion, Justice Viswanatha
Sastri clarified the grounds of the right to manage the idol and its properties.

challenge to the exercise of the power of 370. It is of crucial importance to advert to the
management by a de facto shebait in standard laid by the learned

the following terms: judges in their separate opinions as to when a

person may be deemed to be a de
―…If a de facto trustee is guilty of any breach of
trust, he can be removed like a de jure trustee. The facto shebait. Justice Viswanatha Sastri held:
law fixes him with the responsibility for the proper
―A fugitive or isolated act of a person with regard
administration of the trust and also gives him the
to the property of a religious endowment would not
power to act on behalf of and in the interests of the
make him a de facto trustee. One swallow does not
trust, until a lawful trustee emerges...A person who
make a summer. There must be a continuous course
asserts his own title to the property of a religious
of conduct, the length of the same depending on the
endowment, who does not sue as a trustee or
facts and circumstances of the case. The possession
manager of the endowment and who claims to
of the office or the institution which is the object of
recover the property for himself and not for the
the trust and the exercise of the rights pertaining to
trust, can never be allowed to sue as a de facto
the office, would be important indicia of a de facto
trustee. He is entirely in the position of a trespasser
trusteeship.‖ (Emphasis supplied)
so far as the trust is concerned and cannot be
considered to 232 Followed in Sapna
Koteshwar Godat Goa Endowment (Trust) v
PART N
Ramchandra Vasudeo Kittur AIR 1956 Bom 615
414
PART N
be one who has taken upon himself the duties and
415
obligations of a trustee.‖232

242
Similarly, Justice Raghava Rao held: 233 Palaniappa
Goundan v Nallappa Goundan AIR 1951 Mad 817;
―I must confess, however, that I should have Mohideen Khan v Ganikhan AIR 1956 AP 19;
experienced greater difficulty in the determination Vankamamidi Balakrishnamurthi v Gogineni
of the point in controversy… whence comes the Sambayya AIR 1959 AP 186; The Commissioner
right of the de facto manager to sue? There again, for Hindu Religious and Charitable Endowments,
where and how are we to draw a line between a Madras v PR Jagnnatha Rao (1974) 87 LW 675; D
manager de facto and a manager ad hoc exercising Ganesamuthuriar v The Idol Of Sri
isolated acts on particular occasion? I respectfully Sappanikaruppuswami AIR 1975 Mad 23; Lalji
agree with my learned brother Viswanatha Sastri, J. Dharamsey v Bhagwandas Ranchghoddas 1981
in his picturesque observation that one swallow Mah LJ 573; Shri Parshvanath Jain Temple v L.R.s
does not make a summer; but the practical question of Prem Dass (2009) 1 RLW (Rev) 523
still remains, how many do?...how best to make
sure that the person suing on behalf of the PART N
institution does not enter into improper agreements
or compromises pre-decretal and post-decretal. Or 416
walk away with the monies representing the fruits
that would satisfy this requirement would, by
of a particular decree obtained on behalf of the
necessity, be based on the facts
institution? If that is not possible, is it any
consolation that at the hands of a de jure manager and circumstances of each case. Justice Raghava
too the institution may sustain sometimes a similar Rao endorsed the view of
detriment?‖
Justice Viswanatha Sastri but went a step further to
371. All the above observations are of crucial outline the practical
importance. For, in
difficulties in laying down a standard against which
Sankarnarayanan Iyer and in the consistent the acts of a person claiming
jurisprudence of our courts
to be a de facto shebait must be tested. The caution
thereafter,233 it has been held that a stray act or against adopting a low legal
intermittent acts of management
threshold to confer on a person who merely has
do not vest a person with the rights of a de facto possession of the debutter
shebait. Absent a deed of
property and exercises intermittent managerial
dedication, the contention urged by Nirmohi rights the position of a de facto
Akhara that they have been in
trustee is well founded.
management and charge of the disputed property is
a claim in law, for the rights 372. A de facto shebait is vested with the right to
manage the debutter property
of management as de facto shebaits. Both Justices
Viswanatha Sastri and and bring actions on behalf of the idol. A bona fide
action for the benefit of the
Raghava Rao in Sankarnarayanan Iyer
unequivocally held that isolated acts do idol binds it and its properties. As compared to a de
jure shebait whose rights can
not vest a person with the rights of a de facto
shebait. The conduct in question, legally be traced to a deed of endowment, a de
facto shebait is vested with the
must be of a continuous nature to show that the
person has exercised all the right by mere possession and exercise of
management rights. The protection of
rights of a shebait consistently over a long period
of time. The duration of time

243
the idol‘s properties is at the heart of this any misconduct on his part…The de facto trustee
extraordinary conferral of rights. If so long as he is functioning as such, has, from the
necessities of the situation, the right to bring suits
courts were to adopt a standard that is easily on behalf of and in the interests of the trust for
satisfied, large tracts of debutter evicting trespassers claiming adversely to the trust.
In this respect and for this purpose, his rights and
property may be left at the mercy of persons
powers are the same as that of a de jure trustee…‖
claiming to be in possession of and
A de jure shebait can be removed from office only
managing such properties. It is the duty of the court
on the grounds of
in every case to assess
mismanagement or claiming an interest adverse to
whether there has been not just exclusive
the idol. However, no such
possession but a continuous and
averment is required to remove a de facto shebait.
uninterrupted exercise of all management rights
A de jure shebait may, unless
which are recognised by the
the right of the de facto shebait has been perfected
beneficiaries of the trust property before conferring
by adverse possession,
on a person a right to which
displace a de facto shebait from office and assume
they have no legal title.
management of the idol at
373. The duties that bind the exercise of powers of
any point. Further, where there is a de facto
a de jure shebait apply
shebait, a suit may be instituted
equally to a de facto shebait. Thus, no action can be
under Section 92 of the Civil Procedure Code 1908
brought by the de facto
requiring the court to fill up
PART N
the vacancy by the settling of a scheme. It is for the
417 limited purpose of bringing

shebait which is not in the beneficial interest of the an action for the protection of the idol that the
idol or its properties. However, rights and powers of the de facto

the position of a de facto shebait and a de jure shebait are the same as that of the de jure shebait.
shebait is not the same in all
PART N
respects. In Sankaranarayanan Iyer, Justice
418
Viswanatha Sastri held:
374. The position of law that a person in
―It should be observed that the rights of a de facto
continuous and exclusive possession
trustee are not in all respects identical with those of
a de jure trustee. A de jure trustee of a public of the debutter property who exercises management
religious endowment can be removed only for rights in the interests of the
misconduct and that only in a suit instituted with
the sanction prescribed by Section 92, Civil idol can bring actions on its behalf has found
Procedure Code or section 73 of Madras Act II of recognition by this Court in Vikrama
1927. Where, however, there is only a de facto
shebait functioning as such, it is open to persons Das Mahant v Daulat Ram Asthana234. The
interested in the trust to bring a suit under the appellant was confirmed as a
above provisions alleging a vacancy in the office
manager by virtue of a judgment of the Privy
and requiring that it should be filled up by the
Council (on the ground that the
appointment of a trustee by the court. This would
entail the removal of the de facto trustee without

244
previous Mahant had transferred the property to proceedings for the warding off of a cloud cast by
him). Prior to the date of the the defendant‘s actions against the interests of the
Asthan…‖
judgment of the Privy Council, another
compromise decree was entered into by ―34..where public trusts are concerned, courts
have a duty to see that their interests and the
the then Mahant with certain persons who instituted interests for whose benefit they exist are
a proceeding to have him safeguarded…We consider that, in view of Ram
Sarup Das‘s long management and possession as
removed. While some of the persons who brought
Mahant and in view of the fact that he is purporting
the actions took over as
to act on its behalf and for its interest, it is proper
trustees under the terms of the compromise, one of that he should be allowed to continue to act on
them took over as the behalf of the trust until his title in investigated in
appropriate proceedings and that this Court should
Mahant and entered into possession of the property. grant a decree in his favour in these proceedings for
Three of the trustees and the benefit of the trust.‖

the successor of the previous mahant filed a suit The Court affirmed that it is only for the paramount
against the appellant. Both interest of the institution that

lower courts held against the appellant. The High the right of suit is conceded to persons acting as
Court held that even if the managers though lacking a legal

compromise decree is set aside, the plaintiffs are title of a manager. The long management and
entitled to maintain the suit by possession of the claimant in the

virtue of being de facto trustees whose possession case vested in him a right to act on behalf of the
has been clear and deity to protect its interests.

undisputed. Both courts below recorded that 375. In Sree Sree Kalimata Thakurani of Kalighat v
pursuant to the compromise decree, Jibandhan

the plaintiffs and the appointed Mahant entered into Mukherjee235, a suit was instituted under Section
possession and the 92 of the Code of Civil

properties were mutated in the name of the Mahant, Procedure 1908 for the framing of a scheme for the
and had been in possession proper management of the

since then. Justice B Jagannadhadas, speaking for a seva-puja of the Sree Kali Mata Thakurani and her
Constitution Bench of this associated deities and for the

Court held: proper management of the vested properties. A

scheme was framed and
―33…the question before us is whether a person
who has been in de facto possession and subsequently challenged on the ground that the
management of the Asthan and its properties from inclusion of de facto shebaits in
1934 to 1941 (and thereafter up-todate) claiming to
be its trustee under the decree of a court, valid or the management committee in the scheme was
invalid has not sufficient interest to maintain impermissible. Justice JR

234 AIR 1956 SC 382 Mudholkar, speaking for a Constitution Bench of

this Court rejected this
PART N
contention and held:
419

245
―Whatever that may be, we cannot ignore the fact person is, for all practical purposes, recognised as
that the present predecessors have been functioning the person in charge of the
as shebaits for a very long period and their rights in
that regard have not been called into question ever trust properties. Recognition in public records as
before. In these circumstances we the manager would furnish
235 AIR 1962 SC 1329
evidence of being recognised as a manager.
PART N
377. Significantly, a single or stray act of
420 management does not vest a person

cannot accept the contention of the learned counsel with the rights of a de facto shebait. The person
that they should be completely excluded from the must demonstrate long,
management of the temple.‖
uninterrupted and exclusive possession and
In crafting the relief, the Court was mindful of the management of the property. What
long exercise of rights by those
period constitutes a sufficient amount is determined
acting as shebaits. The initial scheme framed by the on a case to case basis. The
High Court comprised
PART N
eighteen members on the managerial board of
421
which twelve were shebaits. The
performance of religious worship as a pujari is not
Court modified this to a Board of eleven members,
the same as the exercise of
with five shebaits and a
the rights of management. A manager may appoint
majority of Hindus who were not shebaits.
one or several pujaris to
376. The protection of the trust property is of
conduct the necessary ceremonies. In the ultimate
paramount importance. It is for this
analysis, the right of a person
reason that the right to institute proceedings is
other than a de jure trustee to maintain a suit for
conceded to persons acting as
possession of trust properties
managers though lacking a legal title of a manager.
cannot be decided in the abstract and depends upon
A person claiming to be a de
the facts of each case. The
facto shebait can never set up a claim adverse to
acts which form the basis of the rights claimed as a
that of the idol and claim a
shebait must be the same as
proprietary interest in the debutter property. Where
exercised by a de jure shebait. A de facto shebait is
a person claims to be the de
vested with the right to
facto shebait, the right is premised on the absence
institute suits on behalf of the deity and bind its
of a person with a better title
estate provided this right is
i.e. a de jure manager. It must be shown that the de
exercised in a bona fide manner. For this reason,
facto manager is in exclusive
the court must carefully assess
possession of the trust property and exercises
whether the acts of management are exclusive,
complete control over the right of
uninterrupted and continuous
management of the properties without any
over a sufficient period of time.
hindrance from any quarters. The
Duration of time

246
378. A final question that is relevant for our present the defendant was not that of a hereditary trustee,
enquiry is whether a de the right dies with him and the

facto shebait can claim a right to continue only question was whether or not the plaintiffs
indefinitely in office. As seen earlier, a were entitled to management and

de jure shebait and a de facto shebait exercise the offerings. Justice Vivan Bose, speaking for a
similar rights in the limited sense three-judge Bench of this Court

of acting for the benefit of the idol. Even absent an held:

averment of mismanagement
―30. Now a ‗de facto manager or a trustee de son
by the shebait, a person may institute proceedings tort‘ has certain rights. He can sue on behalf of the
under Section 92 of the Code trust and for its benefit to recover properties and
moneys in the ordinary course of management. It is
of Civil Procedure 1908 against a de facto shebait however one thing to say that because a person is a
for the settling of a scheme. In 'de facto' manager he is entitled to recover a
particular property or a particular sum of money
this view, legal certainty and the sustained interest
which would otherwise be lost to the trust, for and
of the deity would be served
on its behalf and for its benefit, in the ordinary
by circumscribing the claim of a de facto shebait to course of management; it is quite another to say
continue, as a matter of right, that he has the right to continue in 'de facto'
management indefinitely without any vestige of
in perpetuity. title, which is what a declaration of this kind would
import. We hesitate to make any such sweeping
PART N declaration… That being so, we think it
undesirable that things should be allowed to drift in
422
this uncertain way, no one knowing where the legal
379. In Gopal Krishnaji Ketkar v Mahomed Jaffar rights of management lie or of what they consist;
Mohamed Hussein236 the no one knowing how the rights are to devolve or
how the large charitable offerings which are
plaintiffs instituted a suit praying for a declaration collected are to be distributed and used.‖ (Emphasis
that the second plaintiff is the supplied)

guardian and 'vahivatdar' of the Darga. The 236 AIR 1954 SC 5

defendant claimed to be its rightful
PART N
manager and Mutawalli. The plaintiffs‘ family
were managers since 1817. Since 423

1902-03, the defendant was given the right to 380. The Court drew a distinction between a claim
manage prayers during a certain in law to be vested with the

period every year in the temple and collect the right to bring an action on behalf of the deities and
offerings for his upkeep. Upon a claim to continue indefinitely

alleged interference with the plaintiffs‘ right to as a de facto shebait which, for all purposes, would
manage and collect offerings, the be equating a de facto

suit was instituted. The Court found that the shebait with a de jure shebait and conferring upon
plaintiffs and their family had been the former a legal title where it

managing from at least the year 1886. The Court has always been absent. Legal certainty and the
held that as the right claimed by ultimate protection of the trust

247
properties underlie Section 92 of the Code of Civil decree on the basis of which the Mahant claimed a
Procedure 1908. Under this right and entered into

provision, the Court is, upon an application by the possession was not given effect. The decree of the
Advocate-General or two or trial court giving effect to the

more persons having an interest in the trust and compromise decree was set aside. Though the court
having obtained the leave of the sustained the rights of the

court, vested with wide powers to replace trustees Mahant to continue as a de facto manager, the
and settle a scheme with Court held:

respect to the trust property. Keeping this in mind, ―19. But this is only a stop gap expedient. We
the Court framed directions in cannot shut our eyes to the fact that we have before
us a public trust of which, on the facts now before
accordance with the above observations: us, an alleged intermeddler claiming under a decree
said to be void is in possession and management. It
―32. We are told by the learned Solicitor-General
may be, when proper proceedings are instituted to
that a suit under Section 92, Civil P.C. is under
determine the matter, that it will be found that he is
contemplation. Without in any way prejudicing
not without legal authority or it may be proper to
matters which will arise there, we make the
invest him with that authority if he has not already
following order. We direct- 1. That the present
got it, or again it may be better to have another
arrangement regarding the collection and disposal
person or body. But those are not matters we need
of the offerings continue for a period of six months
decide in these proceedings. All we need do is to
from the date of this judgment. 2. That in the
bring the present state of facts to the notice of the
interval the offerings so collected, as well as those
Advocate General of Uttar Pradesh and leave him
already in deposit, he not handed over to the
to consider whether he should not, of his own
second plaintiff except to the extent necessary for
motion, institute proceedings under S. 92, Civil P.
meeting the expenses. The legal representatives of
C., or take other appropriate steps. Let a copy of
the defendant have no right at all to those offerings.
this judgment be sent to him.‖
3. If such a suit is instituted within the said period,
then the said offerings and collections be disposed 382. The decisions of this Court in Gopal Krishnaji
of in accordance with such scheme as may then be Ketkar and Vikrama Das
framed, and in accordance with such directions as
may be given in that suit. 4. If no such suit is affirm that the interest of protecting the trust
instituted within the said six months, then the properties was the basis of
second plaintiff, as the person in 'de facto'
management of the Darga from 13-11-1938, the conferring upon a de facto shebait the limited right
date of his adoption, till the date of suit, 7-10-1946, of instituting bona fide suits on
will be entitled to receive the offerings now lying
behalf of the idol. Where there was no de jure
in deposit in the Treasury for and on behalf of the
shebait, the law recognised the
Darga and for its benefit and in future to collect all
the offerings all the year round for and on behalf of person managing the property as a shebait to the
the Darga and for its benefit until he is displaced by extent of protecting the idol and
a person with better title or authority derived from
the Courts.‖ its properties. However, this limited recognition did
not confer upon de facto
PART N
shebaits the right to continue in perpetuity.
424
237AIR 1956 SC 382
381. In Vikrama Das Mahant v Daulat Ram
Asthana237, the compromise PART N

425

248
The Nirmohi Claim Consequently, it was urged that it must be held that
the Nirmohis are the shebaits
383. Having adverted to the legal standard that
must be satisfied for a court to of the idols of Lord Ram. This contention cannot
be accepted. If Nirmohi Akhara
recognise a de facto shebait, the stage has been
reached to adjudicate upon the were to be recognised as a de facto shebait, this
would confer on it a substantive
contention urged by the Nirmohi Akhara that it is
the shebait of the idols at the PART N

disputed site. Nirmohi Akhara is a Panchayati Math 426

of the Ramanandi sect of
right in law to bring actions on behalf of the idol to
Bairagis which is a religious denomination. The the exclusion of all other
customs of Nirmohi Akhara
persons. The actions of a shebait bind the idol and
purport to have been reduced to writing by a its properties. Absent an
registered deed dated 19 March
express deed of dedication conferring shebaiti
1949. It was contended that the disputed structure rights on Nirmohi Akhara, there is
is a temple building which has
a positive burden on it to demonstrate that it was in
been in the possession of Nirmohi Akhara and only fact a shebait of the idols. For
the Hindus have been
this reason, the Nirmohi Akhara must establish, on
allowed to enter the temple and make offerings. the basis of oral and
Nirmohi Akhara claims that it
documentary evidence, that they have exercised all
has been receiving the offerings through its pujaris. the rights required to be
The averments contained in
recognised as de facto shebaits.
the plaint as well as the reliefs which have been
claimed by Nirmohi Akhara 385. Nirmohi Akhara denies the incident of 22/23
December 1949 during which
indicate that the claim is to a right to manage and
have charge of the temple. the idols were surreptitiously introduced into the
inner sanctum of the disputed
Nirmohi Akhara contended that it has been in
possession of the property and has structure. The claim that Nirmohi Akhara were in
possession of the inner
exercised management rights which amounts to a
conferral on them of the status courtyard on the basis of the evidence on record
has already been rejected.
of a de facto shebait.
Nirmohi Akhara has failed to prove that at the
384. At the outset, it was contended by Nirmohi material time, the disputed
Akhara that absent an
structure was a temple which was in its possession
averment in the plaint in Suit 5 disputing its status and that no incident had
as the shebait of the idols of
taken place on 22/23 December 1949. Absent
Lord Ram, their status as shebaits cannot be exclusive possession of the inner
disputed. It was further contended
courtyard, the claim that Nirmohi Akhara was
that no rival claim to the rights of the shebait have managing the inner courtyard as
been set up in any suit.

249
shebaits does not arise. It was in this context that support their contention, Nirmohi Akhara has relied
Justice Sudhir Agarwal held: on the oral evidence of

―2994. Now coming to Issue No. 3 (suit-3), it has witnesses in Suits 3 and 5 and also submitted
to be kept in mind that this suit is also confined to certain additional documents to
the premises within the inner Courtyard and not the
entire premises, i.e., the outer and the inner establish its status as shebait.
Courtyard including the building. This is what is
387. Mr S K Jain, learned Senior Counsel
stated by the counsel for Nirmohi Akhara in his
appearing on behalf of the plaintiff in
statement made on 17.5.1963 under Order X Rule 1
CPC. Suit 3 placed reliance on the witness statements of
Mahant Bhaskar Das (DW
4537. In these particular facts and circumstances
and the stand of Nirmohi Akhara, we have no 3/1) and Raja Ram Pandey (DW 3/2) in Suit 3 to
option but to hold that so far as the idols of contend that it was admitted that
Bhagwan Sri Ram installed in the disputed
structure i.e. within the inner courtyard is the Nirmohi Akhara had been exercising the rights
concerned, the defendant Nirmohi Akhara cannot of a shebait since time
be said to be a Shebait thereof.‖
immemorial. The oral evidence submitted by
PART N Nirmohi Akhara has already been

427 analysed in the course of this judgement. The

statements by their witnesses
386. In the written submissions of Nirmohi Akhara
it has been contended that cannot be relied on to establish a cogent account of
the activities undertaken by
the inner and outer courtyard form a composite
whole and Suit 3 was only filed Nirmohi Akhara at the disputed site. Numerous
witnesses admitted to not having
with respect to the inner courtyard as only the inner
courtyard was the subject of read their own affidavits in lieu of their
Examination-in-Chief. The witnesses
the attachment proceedings. Nirmohi Akhara
submits that the attachment order PART N

made an arbitrary distinction between the inner and 428

outer courtyard and a finding
merely signed the relevant documents without
with respect to the inner courtyard does not understanding the testimony
undermine their claim to shebaitship
contained therein. Further, under cross-
of the entire premises. Even if this argument is examination, a number of the witnesses
accepted, apart from the
expressly contradicted their own statements.
determination that Nirmohi Akahra was not in Several witnesses admitted to not
possession of the inner courtyard,
having even entered the disputed structure or
the independent question that arises for our rescinded earlier statements about
determination is whether Nirmohi
their visits to the disputed structure. In light of
Akhara consistently exercised management rights these observations, the oral
over the idols in the outer
evidence relied upon by Nirmohi Akhara to
courtyard to claim a right in law as a de facto establish their position as shebaits
shebait of the idols of Lord Ram. To

250
cannot be accepted. However, for the sake of In the cross examination of this witness by Mr
completeness, the relevant Zafaryab Jilani, learned Senior

extracts are examined below. Counsel appearing for the Sunni Central Waqf
Board, on 11 September 2003, the
388. Mahant Bhaskar Das (DW 3/1) was the Panch
of Nirmohi Akhara since witness replied:

1950 and was at the material time the Sarpanch. In ―After the attachment the offerings which were
his affidavit, it was stated: made on the idols places in the disputed building
were not a part of any contract by Niromohi
―81. Lord Ram Lalla is seated in the inner part Akhara. There is a mention of agreement about the
even before 1934 and it had been in the possession contract in para 36 of my affidavit but I do not
of Nirmohi Akhara continuously since 1934. The remember how many such agreements were
Muslims are not ignorant about it. The Lord is submitted in this court on behalf of Nirmohi
seated there. His worship, royal offering all is done akhara. I do not remember this time the names of
on behalf of Nirmohi Akhara. On the day of the those people who were made to write the aforesaid
attachment (viz 29.12.1949) of the inner part also it so called agreement by Nirmohi Akhara. I do not
was in possession of the Akhara. The ownership remember any name this time. I have written in
got ordained in Nirmohi Akhara due to its being a para 35 of my affidavit about submitting such
religious trust.‖ agreement in the court and Bindeshwari Dubey was
one of them who wrote the agreement and it is
It has been held, in the course of this judgement, on
submitted in the them who wrote the agreement
an analysis of the evidence
and it is submitted in the court. Which is the
on record, that the idols were shifted under the Document No. 39 C-1/39, I cannot tell it by the
central dome on in the intervening number but the paper is titled.‖ (Emphasis
supplied)
night of 22/23 December 1950. The affidavit of this
witness contains references Though the witness makes reference to the
presence of the Nirmohi Akhara in
to the existence of Nirmohi Akhara in Ayodhya for
200 years and in the disputed the disputed site, the witness is unable to recall any
of the documents mentioned
site. However, with regard to the exercise of
shebaiti rights, the witness states: to have been submitted by him as evidence that the
Nirmohi Akhara were
―35. An annual contract was given to provide
flowers, fruits, batasha, etc., to the visitors of the exercising management rights as the shebait. It is
eastern door temple of Sri Ram Janambhomi. This also important to note the
was being done since ancient time by the previous
answer of this witness to the question put by Mr
Mahants of Nirmohi Akhara and an agreement was
Jilani in the cross-examination
executed for it. The Brahmins were given the
contract to provide holy and fresh water from the dated 17 September 2003:
Sita Koop to the visitors/devotees. The tax was
paid to the Mahant of the ―Question: - Shall I take it that most of the part of
this affidavit was drafted by your advocate on the
PART N basis of his knowledge? Answer:- It is wrong to
say so. Some parts of this affidavit is based on the
429
knowledge of my advocate but I do not remember
Akhara. I have submitted all the available which is that part and I will not be able to tell it.‖
agreements with me and many documents were (Emphasis supplied)
plundered. The report was lodged for the same.‖
PART N

251
430 Bansidhar Das alias Uriya Baba (DW 3/18) in Suit
3 to contend that Nirmohi
The statements of DW 3/1 demonstrate that the
witness was completely unaware Akhara had been exercising management rights
over the disputed site, including
of the documents alleged to have been submitted
by him as evidence. The PART N

statements do not inspire confidence that the 431

Nirmohi Akhara was exercising
the performance of pujas. DW 3/18 was an
management rights as the shebait. intermittent resident of Ramkot,

389. Mr S K Jain then relied on the Examination- Ayodhya since 1930 and claimed to have lived at
in-Chief by way of affidavit of various temples and religious

Raja Ram Pandey (DW 3/2) wherein it was stated: shrines in close proximity to the disputed site.
During his Examination-in-Chief,
―14. …Before attachment of Garb Grah and till
the taking over of its charge by the receiver, I have DW 3/18 states:
seen the Priest and the Assistant Priest of Nirmohi
Akhara reciting Aarty, offering deferential ―In 1930 I went for darshan of Shri Ram Janam
situations and giving ‗prasad‘ and ‗Charanamrit‘ Bhoomi Mandir about which the suit is subjudice.
and similarly I have seen upto February, 1982 the At that time too Bhagwan Ram Lalla was sitting
Priest, The Assistant Priest the Panch of Nirmohi there, I took darshan and also took prasad, Aarti
Akhara reciting Aarti and performing ‗pooja‘ and charnamrit (sacred water). I had been receiving
(worship) in ‗Chabootra Mandir and ―Chhati prasad, Aarti and Charnamrit from the Priest and
Poojan sthal‖.‖ Sadhus of Nirmohi Akhara living in the outer part
i.e. in the Sant Niwas and store rooms situated in
As noted above, a pujari who conducts worship at a the north of main eastern gate, called Hanumatha
temple is not elevated to the dwar, in the north of Ram Chabutra.‖ (Emphasis
supplied)
status of a shebait. A pujari gains no independent
right despite having conducted The witness stated that the priests in charge of the
puja were priests of Nirmohi
the ceremonies for a long period of time. Thus, the
mere presence of pujaris does Akhara. However, under cross-examination by
learned Senior Counsel Mr Jilani,
not vest in them any right to be shebaits. The mere
performance of the work of a the witness stated:

pujari does not in and of itself render a person a ―…First of all, I have darshan of Ramchabutra,
shebait. The statement of DW then Ramlalla, Sita Kitchen and to Shankar
Chabutra and from there I used to come back.
3/2 establishes at the highest that some priests of Sometime I used to offer prasada while having
Nirmohi Akhara were acting as darshan to Pujari (Priest) for offering in the inner
side. I do not remember the name of Priest. Priest
pujaris, but does not evidence the exercise of
kept on changing. He himself said that Mahant of
management rights for the
Hanumangarhi Faizabad remained the Priest for
recognition of their status as a shebait. long time. I do not remember his name at present.
On being reminded by learned cross-examiner
390. Mr S K Jain also placed reliance on the advocate, he said priest name was Bhaskar Das. …
testimony of Sri Acharya Mahant Bhaskar Dasji remained the priest of the disputed
site for years but he was not a Mahant of Nirmohi
Akhara ever. He was a priest of Hanumangarhi,

252
Faizabad. At present he is neither a Mahant of the parties. There is no evidence to suggest that the
Nirmohi Akhara nor a priest. He is a member of the Ramchabutra was ever
committee. I do not know how many members are
there in a committee.‖ (Emphasis supplied) under the central dome of the mosque or that the
idols existed inside the mosque
Despite the initial statement that it was Nirmohi
Akhara that performed the puja at prior to December 1949. The witness further goes
on to state:
the disputed site, the witness contradicts this
statement under cross examination. ―Telling a lie have been described as a sin in the
dharmshastras. But if by telling a lie, proves a
The witness stated that it was one Bhaskar Das who savior then there is no harm in telling a lie.
performed puja. Bhaskar Similarly there is no harm in telling a lie by a
person who is dying of hunger. If there is a
PART N religious place and if somebody is acquiring it
through wrong means or forcibly occupying them,
432
there is no harm in telling a lie. If the religious
Das, according to the witness himself, was not place is taken away forcibly by others by telling a
associated with the Nirmohi lie then it is correct.‖ (Emphasis supplied)

Akhara. The contradictory stance of the witness PART N

cannot be relied upon to
433
establish that Nirmohi Akhara were exercising
In light of these statements by the witness no
management rights or even
reliance can be placed on his
conducting the performance of the puja at the
testimony.
disputed site prior to 1949.
392. Mr S K Jain has relied on the statement of Mr
391. The testimony of several of the witnesses
Jilani recorded on 22 April
relied upon by the plaintiffs in
2009 under Order X Rule 2 of the Code of Civil
Suit 3 is riddled with inconsistencies and
Procedure where it was stated:
contradictions. The testimony of DW
―…the existence of Nirmohi Akhara from the
3/18 is no different. During his testimony he stated:
second half of nineteenth century onwards is also
―…The size of chabutra was about three-four feet, not disputed. It is however denied and disputed that
three feet in width and at one and half feet high Nirmohi Akhara was in existence and special in
from the ground level. This chabutra was just Ayodhya in 16th century AD or in 1528 AD and it
below the mid dome and is made of cement and also denied that any idols were there in the building
bricks. This chabutra was at distance of two feet of the Babri Masjid up to 22nd December, 1949.‖
from western wall and was in the east… … It is
There is a distinction between the mere presence of
not correct to say that 5-6 thousand Hindus have
Nirmohi Akhara at Ayodhya
kept the idols there on the night of 22/23.12.49, by
making forceful entry into. It is also not correct to or around the disputed site and the actual
say these people have desecrated the Masjid. It is possession and management of the
also not correct to say that idols were kept there in
the night because idols have already been there. disputed site. A mere presence within an area or
The point reported in the F.I.R. that idols were kept possession of an area is not
on the night of 22.12.1949, was incorrect….‖
(Emphasis supplied) sufficient to be vested with the powers of a shebait.
Nothing in Mr Jilani‘s
During the course of this judgement a wealth of
evidence has been produced by

253
statement demonstrates or concedes management (iii) Shri Ram Nath Panda @ Bansari Panda
or even possession by (OPW-5)

Nirmohi Akhara. ―In the Barred wall, there were two doors which
used to remain locked and those doors were opened
393. Reliance was then placed on the oral and closed by the Pujaris of the Nirmohi Akhara.
testimony of plaintiff witnesses in The same very pujari used to offer prayers and
perform Arti at Ram Chandra and Sita Rasoi Etc.
Suit 5. Mr S K Jain urged that these witnesses have
We used to arrange Darshan of the Garbh Griha for
admitted that it was the
the pilgrims from the railing itself. A Donation box
priests of the Nirmohi Akhara who were managing was also kept there. On the main gates were the
the idols at the disputed shops of Batasha and flowed/garlands. One of
those belong to Sehdev mali.‖
structure, before and after attachment. It was
submitted that as the witnesses in ―…The key of the lock used to be in the
possession of people of Nirmohi Akhara and whose
Suit 5 had admitted the status of the Nirmohi pujari would open the lock, close the lock, and
Akhara as shebaits, no more perform Arti puja and sounded bells and bugles...‖

evidence was required to be placed before this ―…from 1949 to 1970, I used to go to Ram Janm
Court to establish that the Bhumi Temple regularly. After the attachment of
1949, the receiver of Garbh Girha-Babu Priya Dutt
Nirmohis are the shebaits. The relevant portions of Ram became the chairman of the Municipality
these witness statements are Faizabad and at places like Ram Chabutra Temple,
Chhathi Puja Sthal, Bhandar Sthal and Shiv Darbar
as follows:
Puja continued to be performed in the same way as
PART N before

434 PART N

(i) Sri Mahant Paramhans Ram Charan Das (OPW- 435

1)
and was performed by the same people who used to
―... Before attachment, Hindus had been going to perform it before...‖
Garba Griha without any restrictions for having
The testimony of the plaintiff witnesses in Suit 5
Darshan. Idols of Lord Saligram, Hanumanji and
have been selectively extracted
Ramlalla were installed there. People Belonging to
the Nirmohi Akhara never obstructed any Hindu and do not bear out the conclusion that Nirmohi
from going to the Garba Griha. Members of the Akhara was a shebait. The
Nirmohi Akhara used to manage Garbha Griha
before attachment…‖ statements of OPW – 1 that Nirmohi Akhara
managed the inner courtyard are not
(ii) Deoki Nandan Agarwal (OPW-2)
supported by the evidence adduced, on which
―…Bairagis of Nirmohi Akhara who used to findings are recorded elsewhere in
worship at the Ram Chabutra did not allow
muslims to enter inside. Therefore Namaz could this judgement. Similarly, the isolated statement by
never be performed in this place in spite of efforts OPW – 5 that the Nirmohis
made constantly"
possessed the key to the outer courtyard is not
―…Worship of idols which existed earlier on Ram corroborated by any other
Chabutra and of the idol installed after 1949 was
got done only by the two people of the Nirmohi statements. If the Nirmohis possessed the key to the
Akhara till a quarrel arose with Dharamdasji‖ outer courtyard, every

254
visitor to the disputed site, whether Hindu or statements therein are not corroborated by the
Muslim, would have required the testimony of any other witness.

permission of the Nirmohis to enter. If true, such a Independent of the oral testimonies, Nirmohi
state of affairs would have Akhara has placed reliance upon

surely been recorded by other witnesses in their documentary evidence to establish its status as
testimony. The statement of shebait of the idols at the

OPW – 2 once again merely indicates the presence disputed site. These documents are as follows:
of the Nirmohis in and
(i) The complaint dated 25 September 1866 by
around the disputed site. It indicates a disagreement Meer Rajab Ali Khateeb
between the Nirmohis and
against Tulsidas regarding the ―Kothri‖
Dharam Das about the movement of the idols to the constructed by certain bairagis
inner courtyard in 1949. This
inside the compound of the mosque;
statement undermines the claim of the Nirmohis as
exclusive managers of the (ii) Exhibit 30 – Suit 1: The appeal dated 13
December 1877 by Mohd.
deity as it evidences disagreement about the
placement of the idols. The Asghar against Mahant Khem Das with respect to
the order permitting
continued disavowal of the events of 22/23
December by the Nirmohi Akhara the construction of a new gate on the northern side;

lends credence to this observation. (iii) Exhibit 7 – Suit 5: Gazetteer of the Province of
Oudh (1877-78);
394. The oral testimony relied on by Nirmohi
Akhara establishes, at best, that (iv) Exhibit 24 – Suit 1: The plaint dated 8
November 1882 in the suit
they were present in and around the disputed site.
However, the presence of the instituted by Syed Mohd. Asghar against Mahant
Raghubar Das
Nirmohis around the disputed site does not amount
to the exercise of seeking rent for the use of the Chabutra;

management rights which entitle them in law to the (v) Exhibit 28 – Suit 1: The complaint dated 27
status of a de facto shebait. June 1884 by Mahant

PART N Raghubar Das seeking spot inspection in view of

the work being
436
carried out by Syed Mohd. Asghar for painting the
The oral evidence in Suit 3 upon which reliance mosque;
was placed is riddled with
PART N
inconsistencies and does not bear out the
conclusion that Nirmohi Akhara 437

exercised management rights on behalf of the idols (vi) Exhibit A-22 – Suit 1: Suit dated 19 January
of Lord Ram. The oral 1885 filed by Mahant

evidence of the three witnesses in Suit 5 has been Raghubar Das seeking permission for the
selectively extracted and the construction of a temple on

255
the site of the Ramchabutra; proceedings, the seva-puja continued ―as before‖
and was conducted by the
(vii) Exhibit 8 – Suit 3: Copy of agreement dated
11 June 1900 permitting priests of the Nirmohi Akhara.

Jhingoo (son of Gaya) to provide drinking water to 395. Nirmohi Akhara urged that the presence of
the pilgrims visiting numerous Bairagis of the

Ram Janmabhumi site at Ayodhya; Nirmohi Akhara at the disputed site evidences the
exercise of management
(viii) H R Nevill‘s ―The Gazetteer of the United
Provinces of Agra and Oudh‖ rights. To support this, Nirmohi Akhara relied on
the following:
(1905) stating that the Nirmohi Akhara sect
formerly held the (i) Edward Thornton (1854, Gazetteer of the
territories under the
Janmasthan temple in Ramkot, the remains of
which still belong to Government of East India Company) refers to the
presence of about 500
them;
Bairagis;
(ix) Exhibit 9 – Suit 3: Copy of agreement dated 13
October 1942 (ii) Letter dated 29 November 1949: Kripal Singh,
the then Superintendent of
regarding the Theka Shop of Janmabhumi Ram Kot
Ayodhya executed Police at Faizabad addressed a letter to K K Nayar,
the Deputy
by Narottam Das in favour of Gopal (son of Babu);
Commissioner mentioning that ―several thousand
(x) Exhibit 10 – Suit 3: Agreement dated 29 Hindus, Bairagis and
October 1945 executed in
Sadhus‖ are to participate in the performance of the
respect of a shop by Mahant Raghunath Das; proposed Kirtan;

(xi) Exhibit 49 – Suit 4: Mutation entry in favour of (iii) Letter dated 16 December 1949: K K Nayar
the Mahant Raghunath (the Deputy Commissioner

Das; and and District Magistrate, Faizabad) addressed a

communication to Govind
(xii) Statement by DW – 10 by Umesh Chandra
Pandey. Narayan stating that ―some time this year
probably in October or
It was further contended that while the
Supurdaginama, by which the Receiver November some grave-mounds were partially
destroyed apparently by
took possession does not record from whom
possession was taken, the Bairagis who very keenly resent Muslim
associations with this shrine‖; and
document indicates the presence of the Nirmohi
Akhara in the outer courtyard. (iv) Reference is also made to the presence of the
Bairagis in the report of
PART N
Waqf Inspector dated 23 December 1949 marked
438
as Exhibit A-64 in Suit 1.
Lastly, it was urged that after the interim order was
PART N
passed in the Section 145

256
439 not however evidence any management over the
idols or the disputed site itself.
The evidence relied on by the Nirmohi Akhara in
this regard, evidences at best 398. Significant reliance was placed on the role of
Mahant Rahubar Das as a
the presence of the Bairagis of the Nirmohi Akhara
at the disputed site. No other Mahant of the Nirmohi Akhara. Reliance in this
regard was placed on Exhibits 24
credible documents or evidence was produced to
show that these Bairagis in fact PART N

exercised the rights of management of a shebait. 440

396. The complaint of 25 September 1866 filed by (suit dated 8 November 1882 filed for the
Meer Rajab Ali Khateeb collection of rent), Exhibit 28

states that it is filed against one ‗Tulsidas‘. (complaint dated 27 June 1884 seeking plot
Nirmohi Akhara sought to rely on oral inspection) and Exhibit A-22 (1885

evidence to prove that Tulsidas was in fact a suit filed for the construction of a temple on the
Mahant of the Nirmohis and that it Ramchabutra) in Suit 1 adverted

was Nirmohi Akhara who constructed the to above. It was contended that Mahant Raghubar
―Kothri‖. It has already been held that Das filed the above suits as a

the oral evidence relied on by the Nimohis to Mahant of the Nirmohi Akhara. On this basis, it
substantiate their claim is not was contended that the

reliable. The document itself does not prove that management and charge of the deity was taken care
Tulsidas was a Mahant of the of by the Nirmohi Akhara. A

Nirmohis nor that the construction was carried out closer analysis reveals the numerous contradictions
by the Nirmohis. It is not in the stand of the Nirmohi

corroborated by any other documentary evidence Akhara with respect to Mahant Raghubar Das. In
ordinarily associated with such the Suit of 1885, Mahant

a construction at the time and does not evidence the Raghubar Das claimed to be the ―Mahant,
exercise of rights as a Janmasthan, Ayodhya‖. In the written

shebait. submissions filed by Nirmohi Akhara it was stated

that Mahant Raghubar Das
397. Exhibits 8, 9 and 10 in Suit 3 establish that the
Nirmohis were providing filed the Suit of 1885 in a personal capacity:

various services to the pilgrims visiting the ―…the said suit [1885] was filed by Mahant
disputed structure. However, all three Raghbar Das in his personal capacity without even
mentioning the name of Nirmohi Akhara and in
exhibits pertain to the grant of permission to any case the subject property in the said suit –
provide these services outside the (Chabutra in Outer Courtyard) was different from
the suit-property (Inner Courtyard) which is the
disputed structure. At its highest, these exhibits
subject matter of OOS No. 3‖. (Emphasis supplied)
show that the Nirmohis were
However, in the same written submissions, while
present in and around the disputed structure and
speaking of the report of the
assisted the pilgrims. It does

257
Waqf Inspector dated 23 December 1949, it was Mahant when dealing with the question of res
said: judicata. Nirmohi Akhara even

―He mentions the name of Mahant Raghubar Das stated that it was unaware of the Suit of 1885. The
along with others who invited the Muslims for inconsistent stance of the
talks. Mahant Raghubar Das is the Mahant of
Nirmohi Akhara.‖ (Emphasis supplied) Nirmohi Akhara with respect to Mahant Raghubar
Das leads to an adverse
In the replication, Nirmohi Akhara disavowed any
awareness about the suit by inference against them.

Mahant Raghubar Das: 399. The documentary evidence which has been
produced by Nirmohi Akhara
―…The plaintiffs are not aware of the said suit, if
any, filed by any person known as Mahant does not show that it was managing the property in
Raghubar Das as Mahant of Janma Asthan.‖ question. Apart from the

PART N documentary evidence analysed above which does

not further the case of
441
PART N
In the Written Statement filed on the behalf of
Nirmohi Akhara in Suit 4, it was 442

stated: Nirmohi Akhara, no evidence has been produced to

show the exercise of
―…The answering defendants are not aware of
any suit having been filed by any person known as management rights by Nirmohi Akhara. Stray acts
Mahant Raghubar Dass styling himself to be the do not constitute sufficient
Mahant of Janam Asthan…‖
evidence to establish continuous, exclusive and
In the suit of 1885, Mahant Raghubar Das claimed uninterrupted exercise by
to be the Mahant,
Nirmohi Akhara of the rights and duties of a de
Janmasthan, Ayodhya. In the oral hearings before facto shebait. No document that
this Court as well as the
evidences repairs, construction, appointment of
hearings before the High Court, Nirmohi Akhara pujaris, or other activities has
claimed that Mahant Raghubar
been produced before this Court. Significantly,
Das was a Mahant of Nirmohi Akhara. Justice apart from a stray reference in the
Sudhir Agarwal makes the
account of the travellers, no document of Nirmohi
following observation: Akhara has been put on record

―964. What we have already noticed, it has not to show the exercise of management rights. The
been disputed by Nirmohi Akhara that in 1885 customs of Nirmohi Akhara were
Raghubar Das was Mahant of Nirmohi Akhara…‖
reduced to writing by a registered deed only on 19
It is clear from the above extracts that Nirmohi March 1949.
Akhara sought to espouse Mahant
400. When a question was put to Mr S K Jain to
Raghubar Das as a Mahant of the Nirmohi Akhara produce the original documents
to establish that they have
that establish the claim of the Nirmohi Akhara as
acted as shebaits since the 1800s. Yet they distance shebaits, it was contended that
themselves from the

258
an alleged dacoity had led to loss of the documents complete control over the right of management of
necessary to substantiate the the properties without any let or

claim. To substantiate this claim, it was contended hindrance from any quarters whatsoever. For all
that an FIR was filed on 18 practical purposes, this person is

February 1982 against Dharam Das. However, in recognised as the person in charge of the trust
the written submission properties. Though it cannot and

submitted by the Nirmohis, it is stated that though has not been denied in the present proceedings that
Dharam Das remained in jail Nirmohi Akhara existed at

for two months, the case was subsequently quashed the disputed site, the claim of Nirmohi Akhara,
on the basis of a taken at the highest is that of an

compromise. No documents have been adduced to intermittent exercise of certain management rights.
substantiate this claim other Their rights were peripheral,

than a reliance on the statement of a single witness usually involving the assistance of pilgrims, and
– Raja Ramachandracharya were constantly contested. As

(DW 3/20). This argument is an attempt to gloss held above, a stray or intermittent exercise of
over the glaring absence of any management rights does not confer

substantial proof of the exercise of management upon a claimant the position in law of a de facto
rights by the Nirmohis to confer shebait. It cannot be said that the

on them the status of a shebait. The position of a acts of Nirmohi Akhara satisfy the legal standard of
shebait in law is of crucial management and charge that

significance. The shebait is the human ministrant is exclusive, uninterrupted and continuous over a
and custodian of the idol and sufficient period of time.

acts as its authorised representative. The shebait is Despite their undisputed presence at the disputed
vested with the right to bring site, for the reasons outlined

an action on behalf of the deity and bind it. In this above, Nirmohi Akhara is not a shebait.
view, the claim of Nirmohi
402. In light of the holding that Nirmohi Akhara is
PART N not the shebait for the idols of

443 Lord Ram at the disputed site, it was open for an

interested worshipper to sue on
Akhara that it is a de facto shebait on the basis of
the oral and documentary behalf of the deity. There existed no recognised
shebait in law. In such a situation
evidence on record has been analysed and it has
been found that the claim has the idol‘s independent right to sue was exercised
through its next friend, a
not ripened into shebait rights.
PART N
401. A claim of rights as a de facto shebait must be
substantiated with proof 444

that person is in exclusive possession of the trust worshipper interested in the protection of the idol
property and exercises and its interests. Suit 5 is

259
maintainable as a suit instituted by a next friend on intervening night of 22-23 December 1949. The
behalf of the first and second deity after being placed

plaintiffs in the absence of a lawfully recognised inside the three domed structure (pratishthit) and
shebait. the Ramjanmabhumi

403. Mr Jaideep Gupta, learned Senior Counsel PART N

appearing on behalf of Mahant
445
Shri Dharam Das, respondent 12 in the present
appeal urged that he is the (swayambhu) are juristic persons and have the right
and title over the
successor (Chela) of Late Baba Abhiram Das, who
was the priest of the Ram disputed structure;

Janmabhumi temple before 1949. The present (ii) Nirmohi Akhara cannot claim to be the shebait
respondent is the Mahant of Akhil with respect to the

Bhartiya Sri Panch Nirvani Ani Akhara and juristic entities after having denied their existence
Mahanth of Hanuman Garhi, in their pleadings.

Ayodhya. Late Baba Abhiram Das was defendant When the incident took place in the intervening
no 13/1 in Suit 4 and night of 22-23

Defendant no 14 in Suit 5 and upon his death, the December, no individual of Nirmohi Akhara was
present respondent was present there and no

substituted as defendant in the said suits. It is members of the Nirmohi Akhara were named as
submitted that Late Baba Abhiram accused persons in

Das was the pujari of Janmasthan temple and the proceedings;

played an instrumental role in its
(iii) The respondent is the only person who can
affairs. It has been submitted that prior to 1949, claim to be a shebait of the
Late Baba Abhiram Das
shrine of Ram Lalla and Janmabhumi.
conducted the puja and even after the idol was Respondent‘s Guru Late Baba
placed inside the disputed
Abhiram Das along with several others resolved to
structure, he continued to perform puja till 5 restore the sacred
January 1950 when the receiver took
Janmasthan to its pristine glory by taking a
charge. It is submitted that the present defendant collective vow on the
being the chela of Late Baba
occasion of Vijayadashmi at a public meeting held
Abhiram Das, is entitled to perform sewa-puja and on 2 October 1949,
bhog at the disputed structure
pursuant to which the surrounding area around the
as the shebait. In support of the above, the disputed site was
following submissions have been
sanitised. This was followed by Navahana pathas,
urged: Japa and Sankirthan

(i) The idol of Lord Ram was placed at the disputed both inside and outside the three domed structure;
structure in the
(iv) As long there exists a shebait, the management
of the deity cannot be

260
handed over to the next friend or the Ram Suit 5 stated in his cross examination that the idols
Janmabhumi Nyas in Suit 5. were placed

Both Suit 1 and Suit 5 have been filed in a personal inside the mosque by Abhiram Das, Dharam Das
capacity and no and others;

management or possession can be handed over to (e) On 30 April 1992, Late Deoki Nandan Agarwal,
them; and plaintiff 3 in Suit 5

(v) The fact that Late Baba Abhiram Das was the had stated that the idol was placed inside the
pujari/priest/shebait of central dome on 22-23

the deity has been established from the following December 1949 by Shri Paramhans Ramchandra
facts and records: and Late Baba

(a) One Shri Bhaskar Das (DW 3/1) in Suit 4, who Abhiram Das along with others;
was the Sarpanch of
(f) Late Baba Abhiram Das has been named as
Nirmohi Akhara in his cross examination stated accused no 1 in both
and confirmed that
the FIR dated 23 December 1949 and chargesheet
PART N dated 1

446 February 1950 for placing the idol inside the

disputed structure. Late
Late Baba Abhiram Das was the priest of the
disputed structure and Baba Abhiram Das has submitted that he is the
pujari of the Ram
not the priest of Nirmohi Akhara;
Janmabhumi in the bail bond dated 1 February
(b) In his statement dated 29 December 1950 given 1950;
before the
PART N
Magistrate under Section 145, Late Baba Abhiram
Das had 447

categorically stated that he and his other co-pujaris (g) The District Magistrate, Faizabad in his report
had been dated 23 December

maintaining and managing the Janmabhumi temple 1949 observed that the crowd was controlled by
and the permitting two or

surrounding land since 1934; three persons including Abhiram Das, Ram Shukal
Das and
(c) The respondent stated before the High Court
that various religious Sudarshan Das to offer bhog to the idol inside the
disputed
functions at the disputed premises were organised
under the structure; and

supervision of his Guru, Late Baba Abhiram Das (h) By an application dated 21 December 1962,
and electricity Late Baba Abhiram

connections were also in his name; Das applied for permission before the receiver for
organising the
(d) Mohd Hashim, who is plaintiff no 7 in Suit 4
and defendant no 3 in

261
program of 62 jayanti Samaroh. It is stated that the the worshippers, who come in great numbers, is
said Samaroh being misappropriated by the Pujaries and other
Temple staff, and the receiver has not controlled
had been held each year and organised by Late this evil. Further devotees of the Plaintiff Deities
Baba Abhiram Das are desirous of having a new Temple constructed,
befitting their pristine glory, after removing the old
and Janam Bhoomi Sewa Samiti.
structure at Sri Rama Janam Bhumi, Ayodhya.
404. The dispute inter se between Nirmohi Akhara
...
and Nirvani Ani Akhara is not
18. That although the aforesaid suits have been
the subject matter of the existing dispute. Nirvani
pending trial for such an extraordinarily long
Ani Akhara has not pursued any
number of years, they are inadequate and cannot
proceedings of its own to establish its claim. The result in a settlement of the dispute which led to
claim that Nirmohi Akhara was a their institution or the problems arising there from,
in as much as neither the presiding Deity of
shebait has been rejected. In discussing Nirmohi Bhagwan Sri Rama Virajman nor the Asthan Sri
Akhara‘s claim, it has been held Rama Janma Bhumi, the Plaintiffs Nos. 1 and 2
herein, who are both juridical persons, were
that to establish a claim as a shebait or even as a de impleaded therein, although they have a distinct
facto shebait, one needs to personality of their own, separate from their
worshippers and sewaks, and some of the actual
rely on evidence that indicates more than a mere
parties thereto, who are worshippers, are to some
act of performing the functions
extent involved in seeking to gratify their personal
of a priest. A pujari is merely a servant or interests to be served by obtaining a control of the
appointee of a shebait and gains no worship of the Plaintiff Deities. Moreover, the
events which have occurred during these four
independent right as a shebait despite having decades, and many material facts and points of law
conducted ceremonies over a require to be pleaded from the view point of the
Plaintiff Deities, for a just determination of the
period of time. All the evidence relied upon to dispute relating to Sri Rama Janma Bhumi,
support the claim of Late Baba Ayodhya, and the land and buildings and other
things appurtenant thereto. The Plaintiffs have been
Abhiram Das is restricted to his having performed
accordingly advised to file a fresh suit of their own.
puja at the disputed premises
…
and does not confer any shebaiti rights.
30. That the Hindu Public and the devotees of the
PART N
Plaintiff Deities, who had dreamed of establishing
448 Ram-Rajya in Free India, that is, the rule of
Dharma and righteousness, of which Maryada
N. 7 Limitation in Suit 5 Purushottam Sri Ramchandra Ji Maharaj was the
epitome, have been keenly desirous of restoring his
405. The cause of action leading to the institution Janamsthan to its pristine glory, as a first step
of Suit 5 has been pleaded in towards that

paragraphs 14, 18, 30 and 36 of the plaint which PART N

read as follows:
449
―14.That the plaintiff Deities and their devotees
are extremely unhappy with the prolonged delay in national aspiration given to us by Mahatma
the hearing and disposal of the said suits and the Gandhi. For achieving this, they are publicly
deteriorating management of the affairs of the agitating for the construction of a grand Temple in
Temple, particularly the way the money offered by the Nagar style. Plans and a model of the proposed

262
Temple have already been prepared by the same 450
family of architects who built the Somnath Temple.
The active movement is planned to commence 406. Suit 5 was instituted for ―a declaration that
from September 30, 1989, and foundation stone of the entire premises of Sri Ram
the new Temple building, it has been declared,
Janmabhumi at Ayodhya, as described and
shall be laid on November, 9, 1989. …
delineated in Annexures I, II and III
36. That the cause of action for this suit has been
belong to the plaintiff deities‖ and for a
accruing from day to day, particularly since
consequential perpetual injunction.
recently when the plans of Temple reconstruction
are being sought to be obstructed by violent action Annexures I, II and III were described in paragraph
from the side of certain Muslim Communalists.‖ 2 of the plaint as ―two site
(Emphasis supplied)
plans of the building premises and of the adjacent
The above averments of the cause of action area known as Sri Rama
comprise of the following
Janma Bhumi, prepared by Shiv Shankar Lal
components: Pleader … along with his Report
(i) A prolonged delay in the hearing and disposal of dated 25.05.1950.‖ After the decision of the
Suits 1, 3 and 4; Constitution Bench of this Court in Dr
(ii) Deterioration in the management of the affairs M Ismail Faruqui v Union of India238, the dispute
of the temple and the failure has been circumscribed to the
of the receiver to control it; area comprised in the inner and outer courtyards.
(iii) Offerings by the worshippers have been Suit 5 was instituted on 1 July 1989, on which date,
misappropriated by the pujaris the Limitation Act 1963 was
and temple staff; in force.
(iv) The first and second plaintiffs who are claimed Submissions
to be juridical persons were
407. Setting up the bar of limitation, Dr Rajeev
not impleaded as parties to the earlier suits; Dhavan, learned Senior Counsel
(v) The worshippers and sevaks and some of the appearing on behalf of the Sunni Central Waqf
parties to the suits are Board, canvassed the following
seeking to pursue their own personal interest in propositions:
seeking control of the
(a) Section 10 of the Limitation Act 1963 has no
worship of the deities; application to the present
(vi) Hindu devotees have been agitating for the case since the provision applies to a suit against a
construction of a new temple person in whom
for which plans have been prepared; and property has become vested in trust for any specific
purpose, or his legal
(vii) Plans for reconstruction are sought to be
obstructed ―by violent action from representative or assigns (other than for lawful
consideration) for following
the side of certain Muslim communalists‖.
in his or their hands the property or the proceeds
PART N
thereof or for an account

263
of the property or proceeds; Section 10 of the Limitation Act in submitting that
the suit was within limitation.
238 (1994) 6 SCC 360
Subsequently, on 24 September 2019, in the fair
PART N tradition of the Bar of this Court,

451 Dr Dhavan clarified that he was informed by Mr

Parasaran that he was not taking
(b) The suit could not have been instituted when
the deity was being ―well the benefit of Section 10 and did not make a
submission seeking the benefit of
represented‖ through its shebait – the Nirmohi
Akhara - and no removal of PART N

the shebait has been sought on account of a 452

grievance bearing on
that provision. Dr Dhavan hence urged that the
misconduct; submissions under Section 10 be

(c) The defence that a deity is a perpetual minor read as submissions urged by him.
will not aid the plaintiffs in
408. Mr Parasaran urged that the contentions of Dr
Suit 5 for the reason that the deity was represented Dhavan, appearing for the
by the shebait and a
Defendant-Sunni Waqf Board proceed on the
suit can be instituted by a worshipper as a next footing that the plaintiffs are not
friend only when the
juridical persons and that the Mahant of Nirmohi
shebait is found to have acted adversely to the Akhara is a valid shebait both for
interest of the deity.
the first and second plaintiffs. On the issue of
However, no allegation has been made by the next limitation, the three judges of the
friend against the
Allahabad High Court unanimously held in favour
shebait; of the plaintiffs (except that
(d) It is a settled principle of law that limitation Justice S U Khan did not determine as to whether
runs against a perpetual minor; the second plaintiff is a juristic

and person). Hence, Mr Parasaran urged that the issue

of limitation would depend
(e) Suit 5 is not maintainable as there was no cause
of action for instituting it. upon the findings of this Court on issues 1,6 and
8239 in Suit 5 and in the event
Even otherwise, whichever provisions of the
Limitation Act are applicable, that these issues are held in favour of the plaintiffs
in Suit 5, the attack of the
Suit 5 would be barred by limitation.
defendants to the suit being barred by limitation
On 23 September 2019, Dr Dhavan during the
would, in consequence, fail.
course of his oral submissions
409. At the outset, it is necessary to record that in
responded to the submissions of Mr Parasaran on
the course of the present
limitation. While doing so, Dr
judgment, it has been held that:
Dhavan proceeded on the basis that Mr Parasaran
had sought the benefit of

264
(i) Nirmohi Akhara has failed to establish its case (iii) It is a settled principle of law that a deity is not
of being a shebait; a minor for the purpose of

(ii) As a consequence of (i), the challenge to the limitation.

maintainability of Suit 5 on
The first and the second grounds noted above now
the ground that it was only Nirmohi Akhara as stand concluded by the
shebait which could have
finding that Nirmohi Akhara was not a shebait and
instituted the Suit must fail; and hence Suit 5 has been held to

(iii) The first plaintiff in Suit 5 is a juristic person. be maintainable at the behest of the next friend.

239 Issue 1: Whether the The issue which then falls for consideration at this
first and second plaintiffs are juridical persons. stage, is as to whether Suit 5
Issue 6: Is third plaintiff not entitled to represent
plaintiffs 1 and 2 as their next friend and is the suit can be held to be within limitation on the ground
not competent on this account. Issue 8: Is the that a deity is a perpetual minor.
defendant Nirmohi Akhara the ―Shebait‖ of
This submission of Mr C S Vaidyanathan, learned
Bhagwan Sri Ram installed in the disputed
Senior Counsel appearing on
structure.
behalf of the plaintiff in Suit 5, it is again necessary
PART N
to reiterate would govern the
453
first plaintiff alone which has been held to be a
The issue of limitation would hence be addressed juristic person.
on the basis of the above

position.
PART N
Essentially, the Sunni Central Waqf Board in the
course of its submissions sought 454

to assail the findings of the High Court on A statute of repose

limitation on three broad grounds:
410. The law of limitation is embodied in a statute
(i) Suit 5 could not have been instituted when the which is based on the
deity was being ‗well
principles of repose or peace, as held by this Court
represented‘ through its shebait against whose in Pundlik Jalam Patil v
conduct there is no
Executive Engineer, Jalgoan Medium Project240:
grievance and since the removal of the shebait has
―An unlimited and perpetual threat of limitation
not been sought;
creates insecurity and uncertainty; some kind of
(ii) The defence of the deity being a perpetual limitation is essential for public order...‖
minor cannot aid the plaintiffs
The applicability of the provisions of the
since the deity was being represented by a shebait Limitation Act cannot be extended by
and a suit by a next
analogy or implication. The right to claim in
friend can lie only when the shebait has acted perpetuity is embodied in a specific
adverse to the interest of the
situation which is referred to in Section 10 and the
deity; and ambit of the provision cannot

265
be extended as a matter of implication. Before Dealing with the alienation of property, the
1929, Section 10 was cast in the decision had wider implications which

following terms: led to the statutory changes which were brought in

1929. The Privy Council held:
―10. Suits against trustees and their
representatives. – Notwithstanding anything ―From the above review of the general law
contained in the foregoing provions of this Act, no relating to Hindu and Mahommedan pious
suit against a person in whom property has become institutions it would prima facie follow that an
vested in trust for any specific purpose, or against alienation by a manager or superior by whatever
his legal representatives or assigns (not being name called cannot be treated as the act of a
assigns for valuable consideration), for the purpose ―trustee‖ to whom property has been ―conveyed
of following in his or their hands such property, or in trust‖ and who by virtue thereof has the capacity
the proceeds thereof or for an account of such vested in him which is possessed by a ―trustee‖ in
property or proceeds, shall be barred by any length the English law. Of course, a Hindu or a
of time.‖ Mahommedan may ―convey in trust‖ a specific
property to a particular individual for a specific and
Section 10 was amended by the introduction of an definite purpose, and place himself expressly under
explanation by the Indian the English law when the person to whom the legal
ownership is transferred would become a trustee in
Limitation (Amendment) Act 1929 (1 of 1929). As
the specific sense of the term.‖
amended, the provision came
(Emphasis supplied)
to read as follows:
Alienation by a manager was held not to constitute
―10. Suits against express trustees and their an act of a trustee to whom
representatives. – Notwithstanding anything
property had been conveyed in trust in the same
hereinbefore contained, no suit against a person in
sense in which the expression
whom property has become vested in trust for any
specific purpose, or against his legal was used in English law. As a result of the
representatives or assigns (not being assigns for amendment of 1929, a deeming fiction
valuable consideration), for the purpose of
following in his or their was introduced consequent upon which property
comprised in a Hindu,
240 (2008) 17 SCC 448
Mohammedan or Buddhist religious or charitable
PART N endowments was deemed to be

455 property vested in trust for a specific purpose.

hands such property, or the proceeds thereof or for Section 10 applies to suits filed against:
an account of such property or proceeds, shall be 241AIR 1922 PC 123
barred by any length of time. Explanation : For the
purposes of this section any property comprised in PART N
Hindu, Mohammedan, Buddhist religious or
charitable endowment shall be deemed to be 456
property vested in trust for a specific purpose, and
(i) A person in whom property has become vested
the manager of any such property shall be deemed
in trust for a specific
to be the trustee thereof.‖
purpose; and
411. The background of the amendment is
understood by considering the (ii) Legal representatives and assigns of such a
trustee.
decision of the Privy Council in Vidya Varuthi
Thirtha v Balusami Ayyar241.

266
However, it does not cover assigns of such a trustee 413. In Bishwanath, this Court was tasked with
for valuable consideration. deciding whether a worshipper

The suit can be filed for the purpose of: can maintain a suit for eviction on behalf of the
idol if the shebait acts adversely
(i) Following in the hands of the trustee such
property; to the interest of the idol. Chief Justice Subba Rao,
speaking for a two-judge
(ii) Following in the hands of the trustee the
proceeds of such property; and bench of this Court, held thus:

(iii) For an account of such property or proceeds. ―10. The question is, can such a person represent
the idol when the Shebait acts adversely to its
Significant in the opening words of Section 10 is interest and fails to take action to safeguard its
the absence of the words ―by or interest. On principle we do not see any
justification for denying such a right to the
against‖. The Section, in other words, does not
worshipper. An idol is in the position of a minor
apply to suits by a trustee against
when the person representing it leaves it in a lurch,
third parties. (See also in this context, the decision a person interested in the worship of the idol can
of a Division Bench of the certainly be clothed with an ad hoc power of
representation to protect its interest. It is a
Madras High Court in Palaniandi Gramani pragmatic, yet a legal solution to a difficult
Manickammal v V Murugappa situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for
Gramani242). Section 10 has no application to Suit recovery, in most of the cases it will be an indirect
5. approval of the dereliction of the Shebait's duty, for
more often than not he will not admit his default
The argument of perpetual minority
and take steps to recover the property, apart from
412. Mr C S Vaidyanathan, learned Senior other technical pleas that may be open to the
Counsel, urged that the idol is a transferee in a suit. Should it be held that a
worshipper can file only a suit for the removal of a
minor by legal fiction. Hence, no adverse title can Shebait and for the appointment of another in order
be acquired against a minor. Dr to enable him to take steps to recover the property,
such a procedure will be rather a prolonged and a
Rajeev Dhavan, learned Senior Counsel, submitted complicated one and the interest of the idol may
that although a deity is irreparably suffer. That is why decisions have
permitted a worshipper in such circumstances to
treated as a minor because of its inability to sue
represent the idol and to recover the property for
except through a human agency,
the idol. It has been held in a number of decisions
a deity is not a minor for the purposes of limitation. that worshippers may file a suit praying for
He submitted that the dictum possession of a property on behalf of an
endowment…‖
242 AIR 1935 Mad 483 (Emphasis supplied)

PART N 414. The suit in that case was instituted by Shri

Thakur Radha Ballabhji, the
457
deity represented by a next friend for possession of
in Bishwanath v Sri Thakur Radha Ballabhji243 immoveable property and for
that a deity is a perpetual minor 243 (1967) 2 SCR 618

was not made in the context of limitation. PART N

458

267
mesne profits. The case of the plaintiff was that the and as was observed by Rankin, C.J. In Surendra
second defendant, who was V. Sri Sri Bhubaneswari, it is an extravagant
doctrine contrary to the decision of the Judicial
the Sarvarakar and manager, had alienated the Committee in such cases as Damodar Das Vs.
property to the first defendant Lakhan Das. It is true that the deity like an infant
suffers from legal disability and has got
and the sale not being for necessity or for the
244 B.K. Mukherjea, The Hindu Law of Religious
benefit of the idol was not binding
and Charitable Trust, 5th Edn. Eastern Law House,
on the deity. Both the trial court and on appeal, the (1983) at pages 256-257
High Court held that the sale
PART N
was not for the benefit of the deity and the
459
consideration was not adequate. But it
to act through some agent and there is a similarity
was urged that the suit for possession could only
also between the powers of the shebait of a deity
have been filed by the shebait
and those of the guardian of an infant. But the
and none else could represent the deity. It was in analogy really ends there. For purposes of
that context, that this Court Limitation Act the idol does not enjoy any
privilege and regarding contractual rights also the
held that on principle there was no reason to deny position of the idol is the same as that of any other
to a worshipper a locus to artificial person. The provisions of the Civil
Procedure Code relating to suits by minors or
institute a suit challenging the alienation when the persons of unsound mind do not in terms at least
shebait had acted adversely to apply to an idol; and to build up a law of procedure
upon the fiction that the idol is an infant would lead
the interest of the deity. The observation that the
to manifestly undesirable and anomalous
idol is in the position of a minor
consequences.‖245 (Emphasis supplied)
was not made in the context of the provisions of the
These are prescient words of a visionary judge.
Limitation Act. The
Over the years, Courts have
observation was in the context of deciding whether
elucidated on the juristic character of the idol as a
a suit by a worshipper was
minor and the consequences
maintainable when the manager had dealt with the
of this legal fiction.
property adverse to the
416. In 1903-4, the Privy Council in Maharaja
interest of the deity. The dictum that the idol is in
Jagadindra Nath Roy Bahadur
the position of a minor cannot
v Rani Hemanta Kumari Debi246 dealt with a case
be construed to mean that the idol is exempt from
where the plaintiff, in his
the application of the Limitation
capacity as the shebait of an idol, had instituted
Act 1963.
suits for proprietary rights in
415. In B K Mukherjea‘s ―The Hindu Law of
certain property. The High Court held that the idol
Religious and Charitable
being a juridical person
Trust‖244, the position of law has been thus
capable of holding property, limitation started
summarised:
running against him from the date
―A Hindu Idol is sometimes spoken of as a
of the transfer and hence the suit by the shebait was
perpetual infant, but the analogy is not only
barred by limitation.
incorrect but is positively misleading. There is no
warrant for such doctrine in the rules of Hindu law

268
The Privy Council concurred with the judges of the the shebait attaining majority.
High Court that being a
417. In 1909-10 a judgment was rendered by the
juridical person, the idol was capable of holding Privy Council in Mahant
property. However, limitation was
Damodar Das v Adhikari Lakhan Das247 where
saved because when the cause of action arose, the there was a dispute between
shebait to whom the
the senior chela and junior chela of a Mutt with
possession and management of the dedicated regard to succession after the
property belonged, was a minor.
Mahant passed away. This was settled by an
Hence, the Privy Council held that the right to ikrarnama dated 3 November 1874.
institute a suit for the protection of
Under the ikrarnama, a math at Bhadrak was
245 Ashim Kumar v. allotted in perpetuity to the
Narendra Nath 76 CWN 1016 246 (1903-04) 31 IA
203 senior chela and his successors, while a math at
Bibisarai and the properties
PART N
annexed to it were allotted to the junior chela in the
460 capacity of an

the property vested in the idol could be brought ‗adhikari‘, subject to an annual payment of Rs. 15
within three years of the towards the expenses of the

attainment of majority of the shebait. Sir Arthur Bhadrak math. After the death of the senior chela, a
Wilson observed: suit was instituted by his

―But assuming the religious dedication to have 247 (1909-10) 37 IA

been of the strictest character, it still remains that 147
the possession and management of the dedicated
property belong to the sebait. And this carries with PART N
it the right to bring whatever suits are necessary for
461
the protection of the property. Every such right of
suit is vested in the sebait, not in the idol. And in successor for possession of the math at Bibisarai. It
the present case the right to sue accrued to the was contended that the
plaintiff when he was under age. The case therefore
falls within the clear language of s. 7 of the property was dedicated to the worship and service
Limitation Act, which says that, ―If a person of the plaintiff's idol and was
entitled to institute a suit... be, at the time from
which the period of limitation is to be reckoned, a held by the junior chela in the capacity of an
minor,‖ he may institute the suit after coming of adhikari. The respondent set up
age within a time which in the present case would
limitation as a defence claiming that neither the
be three years.‖
plaintiff nor his predecessors had
(Emphasis supplied)
been in possession of the disputed property within
The basis for holding that suit to be within
twelve years prior to the
limitation was not that the idol was not
institution of the suit. The trial court held that the
subject to the law of limitation but that the shebait
suit was not barred by limitation,
was a minor on the date of the
but the High Court reversed the decree on the
accrual of the course of action. The suit could be
ground that the respondent had
instituted within three years of

269
held the disputed mutt adversely for more than would be saved from the bar of limitation under
twelve years. The Privy Council Section 7 of the Limitation Act.

rejected the plea of the senior chela that the cause The argument was premised on the following
of action arose on the death opinion put forth in the fifth edition

of the senior chela and affirmed the ruling of the of Sastri's ―Hindu Law‖249:
High Court that the suit was
―As regards limitation it should be considered
barred by limitation, having been instituted within whether section 7 of the Limitation Act is not
twelve years of the death of the applicable to a suit to set aside an improper
alienation by a sebait of the property belonging to a
senior chela, but twenty seven years after the Hindu god. As the god is incapable of managing
ikrarnama. Sir Arthur Wilson held his property he should be deemed a perpetual
minor for the purpose of limitation.‖
thus:
The Division Bench, however, held:
―The learned Judges of the High Court have
rightly held that in point of law the property dealt ―…With respect, it may be pointed out that in a
with by the ekrarnama was prior to its date to be transfer by a minor the question of a proper or
regarded as vested not in the Mohant, but in the improper alienation would not arise. Under the
legal entity, the idol, the Mohant being only his Contract Act a transfer by a minor would be void
representative and manager. And it follows from and not only voidable: Mohori Bibee v. Dharmodas
this that the learned Judges were further right in Ghose [(1902) I.L.R., 30 Calc., 539.]. If the rule
holding that from the date of the ekrarnama the were enforced the property of a god would not
possession of the junior chela, by virtue of the fetch any money in the market when need arose to
terms of that ekrarnama, was adverse to the right of transfer it for the benefit of the temple where the
the idol and of the senior chela, as representing that idol may be installed…We have clear authority,
idol, and that, therefore, the present suit was barred therefore, in refusing to accept the plaintiff's
by limitation.‖ argument.‖
(Emphasis supplied)
In adopting this view, the Division Bench of the
Though the above observations did not specifically High Court relied on the decisions
deal with whether an idol
of the Privy Council in Maharaja Jagadindra Nath
could be regarded as a perpetual minor, the Privy and in Damodar Das.
Council held in clear terms that
419. The fiction of perpetual minority was adopted
the plea of adverse possession as against the right by a Division Bench of the
of the idol was available and
Madras High Court in Rama Reddy v
that therefore the suit was barred by limitation. Rangadasan250. In that case, the plaintiff

PART N had instituted a suit in 1918 as the pujari and

trustee of the suit temple to recover
462
possession of property granted to an ancestor of the
418. In Chttar Mal v Panchu Lal248, a Division
plaintiff as manager of the
Bench of the Allahabad High
248 AIR 1926 All 392
Court considered whether an idol suffers a
249 Chapter XIV, 5th edition at page 726. 250 AIR
disability of being a perpetual minor
1926 Mad 769
and hence a suit by an idol at any period of time
PART N
after the date of the transfer
463

270
temple. The disputed property had been sold by would not apply. The High Court noted that the
defendant nos 1 and 2 (the principle of adverse possession

father and uncle of the plaintiff) to defendant no 3 would apply to cases where a person who could
in 1893. It was the contention assert his title does not do so

of the plaintiff that the property had been granted within the period stipulated under Article 144 of
as service inam to their family the Limitation Act. With respect

for rendering service as a pujari and the alienation to the property of an idol, Justice Devadoss held
was not valid. The District thus: 251 AIR 1922 PC
123
Munsif dismissed the suit as barred by limitation
and on appeal, the Subordinate PART N

Judge reversed and remanded the suit. The District 464

Munsif again dismissed the
―The legal fiction is that an idol is a minor for all
suit and on appeal, the District Judge confirmed the time and it has to be under perpetual tutelage and
decree. The lower appellate that being so, it cannot be said that the idol can
ever acquire majority, and a person who acquires
court found that the plaintiff was the pujari or title from a trustee of a temple cannot acquire any
trustee of the suit property and held title adverse to the idol, for the idol is an infant for
all time and the succeeding trustee could recover
that the suit property was attached to the temple.
the property for the idol for any time.‖
The plaintiff preferred a second
The High Court held that the manager cannot set up
appeal, which was heard by a Single Judge, who
an adverse title to the
held that the suit was not
property of the idol. It was concluded that in
barred by limitation. In a Letters Patent Appeal
consequence, the manager by his
preferred against the decree of
act cannot allow a person who derives title from
the Single Judge, the Division Bench was to
him to assert an adverse title.
determine whether the suit was
In Surendrakrishna Roy v Shree Shree Ishwar
barred by Article 134 or 144 of the Limitation Act.
Bhubaneshwari Thakurani252,
420. The High Court noted the decision in Vidya
a Division Bench of the Calcutta High Court held
Varuthi Thirtha v Balusami
that when the property
Ayyar251 where the Privy Council held that a
dedicated to an idol has been held adversely to
permanent lease of mutt property
another and there is no fiduciary
could not create any interest in the property to
relationship with the idol, limitation would run and
subsist beyond the life of the
be governed by Article 144 of
grantor and consequently, Article 134 would not
the Act. Chief Justice Rankin, on the issue of
apply to a suit brought by the
perpetual minority, held thus:
successor of the grantor for the recovery of the
―21. The doctrine that an idol is a perpetual minor
property. The High Court held
is, in my judgment an extravagant doctrine contrary
that a trustee cannot convey a valid title to the to the decision of the Judicial Committee in such
transferee, hence Article 134 cases as Damodar Das v. Lakhan Das[ (1910) 37
Cal 885 : 37 IA 5147 : 7 IC 240 (PC).] . It is open
to shebaits or any person interested in an

271
endowment to bring a suit to recover the idol's to be made between the deity and the image [cf.
property for debuttar purposes…‖ Bhupati Nath v. Ram Lal [I.L.R. 37 Cal. 128, 153:
(Emphasis supplied) s.c. 14 C.W.N. 18 (1910).] , Golapchandra Sarkar,
Sastri's ―Hindu Law,‖ 7th Ed., pp. 865 et seq.].
The decision of the High Court was affirmed by the But there has never been any doubt that the
Privy Council in Sri Sri Iswari property of a Hindu religious endowment—
including a thakurbari—is subject to the law of
Bhubaneshwari Thakurani v Brojonath Dey.253
limitation [Damodar Das v. Lakhan Das [L.R. 37
252 AIR 1933 Cal 295 I.A. 147 : s.c. 14 C.W.N. 889 (1810).] and Sri Sri
Iswari Bhubaneshwari Thakurani v. Brojo Nath
253 (1936-37) 64 IA 203 Dey [L.R. 64 I.A. 203 : s.c. 41 C.W.N. 968
(1937).] ]. From these considerations special to
PART N Hindu law no general licence can be derived for the
invention of fictitious persons…‖ (Emphasis
465
supplied)
421. In The Mosque, Masjid Shahid Ganj v
254 AIR 1940 PC 116
Shiromani Gurdwara
PART N
Parbandhak Committee, Amritsar254, the Privy
Council considered whether a 466

mosque can be considered a juristic person and can It was concluded thus:
be subject to adverse
―The property now in question having been
possession. Sir George Rankin observed: possessed by Sikhs adversely to the waqf and to all
interests thereunder for more than 12 years, the
―That there should be any supposed analogy
right of the mutawali to possession for the purposes
between the position in law of a building dedicated
of the waqf came to an end under Art. 144 of the
as a place of prayer for Muslims and the individual
Limitation Act and the title derived under the
deities of the Hindu religion is a matter of some
dedication from the settlor or wakif became extinct
surprise to their Lordships. The question whether a
under sec. 28. The property was no longer, for any
British Indian Court will recognise a mosque as
of the purposes of British Indian Courts, ―a
having a locus standi in judicio is a question of
property of God by the advantage of it resulting to
procedure. In British India the Courts do not follow
his creatures…‖
the Mahomedan law in matters of procedure [cf.
Jafri Begum v. Amir Muhammad Khan [I.L.R. 7 In a decision of a Division Bench of the Calcutta
All. 822 at pp. 841, 842 (1885).] , per Mahmood, High Court in Tarit Bhushan
J.] any more than they apply the Mahomedan
criminal law of the ancient Mahomedan rules of Rai v Sri Sri Iswar Sridhar Salagram Shila
evidence. At the same time the procedure of the Thakur255, Nasim Ali J noted the
Courts in applying Hindu or Mahomedan law has
to be appropriate to the laws which they apply. similarities and points of distinction between the
Thus the procedure in India takes account, position of a minor and an idol in
necessarily, of the polytheistic and other features of
Hindu Law:
the Hindu religion and recognises certain doctrines
of Hindu law as essential thereto, e.g., that an idol ―The points of similarity between a minor and a
may be the owner of property. The procedure of Hindu idol are: (1) Both have the capacity of
our Courts allows for a suit in the name of an idol owning property. (2) Both are incapable of
or deity though the right of suit is really in the managing their properties and protecting their own
sebait [Jagadindranath v. Hemmta Kumari [L.R. 31 interests. (3) The properties of both are managed
I.A. 203 : s.c. 8 C.W.N. 609 (1605).] ]. Very and protected by another human being. The
considerable difficulties attend these doctrines—in manager of a minor is his legal guardian and the
particular as regards the distinction, if any, proper manager of an idol is its shebait. (4) The powers of

272
their managers are similar. (5) Both have got the infant, so that transactions by or against him will
right to sue. (6) The bar of S. 11 and Order 9, R. 9, not by governed by the Limitation Act.
Civil P.C., applies to both of them.
The doctrine that an idol is a perpetual minor is an
The points of difference between the two are: (1) A extravagant doctrine as it is open to the sebayat, or
Hindu idol is a juristic or artificial person but a any person in an endowment, to bring a suit to
minor is a natural person. (2) A Hindu idol exists recover the idol‘s property for devottar purposes.
for its own interest as well as for the interests of its An idol, therefore, is as much subject to the law of
worshippers but a minor does not exist for the limitation as a natural person and cannot claim
interests of anybody else. (3) The Contract Act exemption on the ground that he is a perpetual
(Substantive law) has taken away the legal capacity infant. Nor is a Hindu deity to be regarded as a
of a minor to contract but the legal capacity of a minor for all purposes. An idol cannot, therefore,
Hindu idol to contract has not been affected by this claim exemption from the law of limitation.‖
Act or by any other statute. (4) The Limitation Act
(an adjective law) has exempted a minor from the The legal fiction of a deity as a minor has been
operation of the bar of limitation but this protection evolved to obviate the inability of
has not been extended to a Hindu idol.
the deity to institute legal proceedings on its own.
255 AIR 1942 Cal 99 A human agent must institute

PART N legal proceedings on behalf of the deity to

overcome the disability. However, the
467
fiction has not been extended to exempt the deity
From the above it is clear that there is some from the applicability of the law
analogy between a minor and a Hindu idol but the
latter is neither a minor nor a perpetual minor.‖ of limitation.
(Emphasis supplied)
256 AIR 1949 Orissa 1
Before the Orissa High Court in Radhakrishna Das
PART N
v Radharamana Swami256,
468
a suit had been instituted by the next friend of the
deity for a decree directing the 422. In the present case, it has been established that
there was no de-facto or
restoration of the plaintiff deity to its original place
of consecration. The Division de-jure shebait acting on behalf of the deity.
Therefore, it is appropriate to refer to
Bench of the High Court held that an idol cannot be
regarded a perpetual minor judgements of this Court regarding the ―right of
suit‖ as vested in the shebait and
for the purposes of limitation and rejected the
contention of the plaintiff that the the consequence of the absence of a shebait on the
application of the Limitation
deity‘s right to be located at its temple is a
continuing right on account of the Act to the adverse possession of debutter property.
―In Rai Sahib Dr
incapacity of the deity to act on its behalf. The
Division Bench held: Gurdittamal Kapur v Mahant Amar Das Chela
Mahant Ram Saran257, this
―…An idol is no doubt in the position of an infant
as it can act only through a sebayat or a manager. Court dealt with a case where a suit was filed in
But no authority has been cited to us for the 1957 by the first respondent,
proposition that he is to be regarded as a perpetual

273
who was a newly appointed Mahant of Akhara of the sale from which the commencement of the
Nirbansar of Sultanwind Gate, adverse possession of the purchaser is to be
computed for the purposes of Article 144 of the
Amritsar. The second respondent was removed as a Limitation Act... Thus if Respondent 2 could be
Mahant in proceedings said to have represented the Akhara in the two
earlier suits, decrees made in them would bind
under Section 92 of the Civil Procedure Code and
Respondent 1 as he is successor in office of
the first respondent was
Respondent 2. On the other hand if Respondent 2
subsequently appointed in his place. It was alleged did not represent the Akhara, the possession of the
that the alienation of property appellant under the decree passed in these suits
would clearly be adverse to the Akhara upon the
by the second respondent was unauthorised as the view taken in the two decisions of the Privy
transfer was not for legal Council just referred to. The first respondent's suit
having been instituted after the appellant has
necessity or for the benefit of the estate. Moreover, completed more than 12 years of adverse
it was contended that the fact possession must, therefore be held to be barred by
time. For these reasons disagreeing with the courts
that the appellant was in possession of the land for
below we set aside the decrees of the courts below
more than twelve years made
and instead dismiss the suit of Respondent 1 with
no difference and since the land was trust property, costs in all the courts.‖ (Emphasis supplied)
a suit for its recovery could
423. In a subsequent decision of this Court in
be brought within twelve years from the date of Sarangadeva Periya Matam v
death, resignation or removal of
Ramaswami Goundar(Dead) by Legal
the manager of such a property. A three judge Representatives258, the Mathadhipathi
Bench of this Court held that the
had granted a perpetual lease of a portion of the
suit filed by the first respondent was liable to be disputed property to the
dismissed since the appellant
grandfather of the plaintiffs on annual rent. Since
had been in adverse possession for more than 1883 when the lease was
twelve years. Speaking for this
granted and until January 1950, the respondents
Court, Justice J R Mudholkar held that for the were in uninterrupted
purposes of Section 144 of the Act,
possession of the property. In 1915, the
adverse possession is to be computed from the Mathadhipathi died without a successor
―effective possession‖ of the
and the plaintiffs did not pay any rent. Between
appellant as a result of the sale: 1915 and 1939, there was no

―12…The law on the subject has been stated very Mathadhipathi and some person was in
clearly at pp. 274 and 275 in Mukherjea's Hindu management of the Math for twenty
Law of Religious and
years. A Mathadhipathi was elected in 1939. In
257 AIR 1965 SC 1966
1928, the Collector of Madurai
PART N
passed an order to resume the Inam lands, and
469 directed full assessment of the

Charitable Trust, 2nd Edn. It is pointed out that in lands and payment of the assessment to the Math
the case of an execution sale of debutter property it for its upkeep. After
is not the date of death of the incumbent of the
Mutt but the date of effective possession as a result

274
resumption, a joint patta was issued in the name of property. Like an idol, the math is a juristic person
the plaintiff and other persons having the power of acquiring, owning and
possessing properties and having the capacity of
258 AIR 1966 SC 1603 suing and being sued. Being an ideal person, it
must of necessity act in relation to its temporal
PART N
affairs through human agency... It may acquire
470 property by prescription and may likewise lose
property by adverse possession. If the math while
in possession of the lands. The respondents in possession of its property is dispossessed or if
continued to possess the suit lands the possession of a stranger becomes adverse, it
suffers an injury and has the right to sue for the
until January 1950 when the Math obtained recovery of the property. If there is a legally
possession. On 18 February 1954, appointed mathadhipathi, he may institute the suit
on its behalf; if not, the de facto mathadhipathi may
the respondents instituted the suit against the Math
do so, see Mahaleo Prasad Singh v. Koria Bharti
represented by its then
[(1934) LR 62 IA 47, 50] ; and where, necessary, a
Mathadhipathi and an agent of the math claiming disciple or other beneficiary of the math may
recovery of possession of the
PART N
suit lands. The Trial Court decreed the suit. In
471
appeal, the District Judge set aside
take steps for vindicating its legal rights by the
the decree and dismissed the suit. In second appeal,
appointment of a receiver having authority to sue
the High Court of Madras
on its behalf, or by the institution of a suit in its
restored the decree of the Trial Court. The name by a next friend appointed by the Court. With
respondent contended that he had due diligence, the math or those interested in it may
avoid the running of time. The running of
acquired title to the lands by adverse possession limitation against the math under Article 144 is not
and by the issue of a ryotwari suspended by the absence of a legally appointed
mathadhipathi; clearly, limitation would run
patta in his favour on the resumption of the Inam. against it where it is managed by a de facto
The appellant contended that mathadhipathi. See Vithalbowa v. Narayan Daji
Thite [(1893) ILR 18 Bom 507, 511] , and we think
the right to sue for the recovery of the Math
it would run equally if there is neither a de jure nor
properties vests in the legally
a de facto mathadhipathi.‖
appointed Mathadhipathi and adverse possession (Emphasis supplied)
against him would not run until
Justice R S Bachawat held that when possession of
his appointment. A three judge Bench of this Court the property became
noted that like an idol, a Math
adverse, limitation against the Math would run
is a juristic person which must act through a human even in the absence of a de jure or
agency and a claim of
de facto Mathadhipathi. While noting the decision
adverse possession was maintainable against it: of the Privy Council in

―6. We are inclined to accept the respondents' Maharaja Jagadindra Nath, this Court declined to
contention. Under Article 144 Indian Limitation extend the principle that the
Act, 1908, limitation for a suit by a math or by any
―right to sue for possession‖ is to be divorced
person representing it for possession of immovable
from the ―proprietary right‖ to the
properties belonging to it runs from the time when
the possession of the defendant becomes adverse to property which is vested in the idol:
the plaintiff. The math is the owner of the endowed

275
―8… in giving the benefit of Section 7 of the Bench of two judges). Both the three judge Bench
Indian Limitation Act, 1877 to the shebait, the decisions supported the view
Privy Council proceeded on the footing that the
right to sue for possession is to be divorced from that the law of limitation would be applicable.
the proprietary right to the property which is vested Moreover, the Privy Council in
in the idol. We do not express any opinion one way
Masjid Shahidganj v Shiromani Gurdwara
or the other on the correctness of Jagadindra Nath
Prabandhak Committee,
Roy case [ILR 32 cal 129, 141] . For the purposes
of this case, it is sufficient to say that we are not Amritsar260 had noted that there had never been
inclined to extend the principle of that case. In that any doubt that the property of a
case, at the commencement of the period of
limitation there was a shebait in existence entitled Hindu religious endowment is subject to the law of
to sue on behalf of the idol, and on the institution limitation.
of the suit he successfully claimed that as the
person entitled to institute the suit at the time from Justice Sudhir Agarwal, on the other hand was of
which the period is to be reckoned, he should get the view that though the suit as
the benefit of Section 7 of the Indian Limitation
it was earlier filed, pertained to a wider area, the
Act, 1877. In the present case, there was no
extent of the dispute (following
mathadhipathi in existence in 1915 when limitation
commenced to run. Nor is there any question of the the judgment of this Court in Ismail Faruqui) was
minority of a mathadhipathi entitled to sue in 1915 confined to the inner and outer
or of applying Section 6 of the Indian Limitation
Act, 1908.‖ courtyards. In the view of Justice Agarwal, this
being the birth-place of Lord Ram
PART N
which Hindus had been visiting since time
472 immemorial and the deity being ―in the
Decision of the High Court form of a place‖ it ―can never be destroyed nor
could be destructed‖. Hence, if the
424. On the aspect of whether a deity can be
regarded as a perpetual minor, deity claims a declaration from the court, the plea
of limitation would not be
Justice S U Khan held that an idol of a deity is not
a perpetual minor for the 259 (1967) 2 SCR 618
260 AIR 1940 PC 116
purpose of limitation and debutter property can be
lost through adverse PART N
possession. The view of the learned Judge was that 473
the observation in
applicable and there was no reason to take recourse
Bishwanath v Sri Thakur Radha Ballabhji259 that to Section 6 or Section 7 of
an idol is in the position of a
the Limitation Act.
minor was not in the context of the law of
limitation. On the contrary, in the view Justice D V Sharma relied upon the decision in
Bishwanath and came to the
of the learned Judge, the decisions in Dr
Gurdittamal Kapur and Sarangadevi conclusion that a deity is a minor for the purposes
of Section 6 of the Limitation
Periya Matam were of three judge Benches
(Bishwanath, being decided by a Act and extending the benefit available to a minor
to a deity would do no injustice

276
to the world at large. Courts. Justice D V Sharma has read into the
provisions of Section 6 of the
425. The analysis of the legal position on the
applicability of the law on Limitation Act that the same principle which
applies to a minor also applies to a
perpetual minority by Justice S U Khan commends
itself. Based on the judicial deity. Such an extension cannot be arrived at by
implication or by interpretation.
precedents analysed above, it is an established
position that a deity cannot on Limitation in Suit 5

the ground of being a perpetual minor stand 426. Each of the three judges of the Allahabad
exempted from the application of the High Court furnished reasons of

Limitation Act. The submission which was urged their own in holding that Suit 5 was within
by Mr C S Vaidyanathan is limitation. Justice S U Khan dealt with

contrary to the jurisprudence of close to a century limitation in one consolidated analysis and
on the issue. We follow the line furnished five reasons of which the

of precedents emanating from the Privy Council, first and the fifth were held to be applicable to Suit
this Court and several High 5. According to the learned

Courts noted earlier. The applicability of the law of Judge:

limitation cannot be ruled out
(i) The Magistrate by keeping the proceedings
on the basis of the theory of perpetual minority. under Section 145 pending

For the reasons which we have been already been indefinitely, acted in excess of jurisdiction.
adduced above, the reasons Consequently, no final order

which weighed with Justice Sudhir Agarwal and was passed in the Section 145 proceedings. By not
Justice DV Sharma while doing so, it was held

construing the applicability of the Limitation Act that the bar of limitation would not arise; and
are incorrect. The decision of the
(ii) The court in any event was required to return a
two judge Bench in Bishwanath did not deal with finding under Order XIV on
the issue of the applicability of
all issues.
the Limitation Act and the observations that a deity
is a minor cannot be extended Justice Sudhir Agarwal held that the plea of
limitation in Suit 5 must be
by implication to create an exemption to the
applicability of the law of limitation. understood in the context of the following facts:

Such an extension would be contrary to the (i) The place in dispute is believed by Hindus to be
consistent precedents emanating the birth-place of Lord

PART N Ram and has been worshipped as such since time

immemorial;
474
PART N
from the Privy Council as well as in the decisions
of this Court and the High 475

277
(ii) A non-Hindu structure in the nature of a (x) Treating the disputed structure as a mosque, the
mosque was raised at the British Government

command of the Muslim ruler before the visit of allowed a Nankar grant to two Muslims in
Tieffenthaler (1766-71); pursuance of which they claimed

(iii) Despite the above construction, Hindus to have incurred expenses on the maintenance of
continued to visit it and offer the building;

worship according to their belief that it was the PART N

birth-place of Lord Ram;
476
(iv) Though the structure of the building was
treated as a mosque it did not (xi) On 22/23 December 1949, idols of Lord Ram
were placed by Hindus in the
impact the beliefs of the Hindus;
inner courtyard;
(v) Within the premises of the undivided mosque,
there was a non-Islamic (xii) On 29 December 1949, the inner courtyard
was attached under Section
structure of a Bedi which was noticed by
Tieffenthaler in his account; 145 in spite of which the Magistrate ensured that
worship of the idols
(vi) Other Hindu structures were added with the
passage of time including Sita placed under the central dome continued after
which the civil court passed
Rasoi, Ramchabutra and Bhandar;
an order of injunction on 16 January 1950, which
(vii) These structures were noticed in 1858, 1873, was clarified on 19
1885, 1949 and 1950 and
January 1950, confirmed on 3 March 1951 and
continued until the demolition of the entire which attained finality on
structure on 6 December 1992;
26 April 1955;
(viii) Though the entire disputed structure was
called a mosque, the British (xiii) Since 23 December 1949, worship had
continued by the Hindus while on
Government recognised the rival claims of both the
communities by the other hand, no Muslim had entered the premises
or offered namaz;
dividing the disputed area in two parts within
which each community could (xiv) Since 29 December 1949, worship by Hindus
continued from the iron grill
separately offer prayer and worship;
door of the dividing wall and only priests were
(ix) Despite this division, Hindus not only kept allowed to enter the
possession of the outer
premises for worship; and
courtyard but continued to enter the inner courtyard
in spite of repeated (xv) The District Judge, by an order dated 1
February 1986, directed the
complaints and removal orders fortified by the
record between 1858 to removal of locks and the opening of doors to
permit the Hindus to pray to
1885;
the idols in the inner courtyard.

278
On the basis of the above facts, Justice Sudhir plaintiffs in Suit 5 were impleaded. The averment
Agarwal held that worship of the in Suit 5 is that both the first

deities had continued and there was no action or and second plaintiffs have a distinct juridical
inaction in respect of which the personality of their own. The first

plaintiffs could claim a right to sue governed by a plaintiff has a distinct juridical personality
particular period of limitation. independent of the worshippers. In

The learned judge held that in the preceding few paragraph 18 of the plaint, the plaintiffs aver that
hundred years, the only action some of the parties to the earlier

which may have arisen to adversely affect the suits who are worshippers are to some extent
interest of the plaintiffs was the ―involved‖ in seeking to gratify their

raising of the disputed structure. In spite of this, the personal interests to be served by obtaining control
place in dispute continued to over the worship of the

be used by the Hindus for the purposes of worship. plaintiff deities.

On the other hand, there is
428. Significantly, even after the attachment of the
no mention of any Muslim having offered namaz disputed property on 29
from the date of the construction
December 1949 the sewa-puja of the plaintiff
PART N deities continued. Therefore, it

477 cannot be contended that the cause of action in Suit

5 arose on 29 December
until 1856-57. In view of the above facts, there was
no action for the Hindus to be 1949 and pertains to the obstruction of worship and
prayer or the attachment of
aggrieved on a particular date, giving rise to a right
to sue for the purposes of the disputed property. The pleadings in Suit 5
refers to all the previous suits filed
limitation. Consequently, the judge held that Suit 5
could not be held to be barred PART N

by limitation. 478

Justice DV Sharma held that the deity is a minor with respect to the disputed property. The
for the purpose of Section 6 of defendants in Suit 5 include the plaintiff

the Limitation Act and came to the conclusion that in Suits 1, 3 and 4, besides Muslim and Hindu
Suit 5 was within limitation. parties and the State and its

427. It now becomes necessary to address the officials. Suit 5 is founded on the plea that as a
fundamental issue as to whether matter of fact, the interest of the

Suit 5 is barred by limitation. In assessing whether deities was not being safeguarded by the persons or
Suit 5 is within or beyond entities who were pursuing

limitation regard must be had to the position that in the earlier proceedings. When Suit 5 was instituted,
the remaining suits which the legal personality of the

were initiated before the Allahabad High Court first and second plaintiff had not been adjudicated
(Suits 1, 3 and 4), neither of the upon. Upon the institution of

279
Suit 5, the plaintiffs in Suit 3 and Suit 4 expressly Sunni Central Waqf Board and the Nirmohi Akhara
denied that the second plaintiff raised similar objections,

was an independent object of worship and a legal which have been re-affirmed by their stand taken in
person. Further, the the course of the present

apprehension of the plaintiffs in regard to the proceedings. Dr Rajeev Dhavan, leading the
interest of the deity of Lord Ram not arguments for the Sunni Central

being protected was abundantly established in the Waqf Board submitted that though Suit 3 is barred
stance which was taken by by limitation, that does not

Nirmohi Akhara in its written statement filed on 14 extinguish the right of Nirmohi Akhara to pursue
August 1989. Nirmohi Akhara its claim as a shebait. It was

denied that the plaintiffs were entitled to any relief urged that Nirmohi Akhara being the shebait, Suit 5
and set up the plea that the is not maintainable. The case

premises mentioned by the plaintiffs belong to of the plaintiffs that the institution of the Suit 5 was
Nirmohi Akhara and that the necessitated as a result of the

plaintiffs have no right to seek a declaration deity not being a party to the earlier suits and based
―against the right and titles of the on the apprehension that in

Nirmohi Akhara‖. Indeed, the Nirmohi Akhara the existing suits, the personal interests of the
construed the suit as ―the threat to leading parties were being

demolish the temple of the Nirmohi Akhara for pursued without protecting the independent needs
which the suit of the Akhara is and concerns of the deity of

pending‖. Nirmohi Akhara set up the plea that the Lord Ram, is well and truly borne out by the
idol of Lord Ram is installed not proceedings as they unfolded in the

at Ram Janmabhumi at Ayodhya but in the temple proceedings before this Court. The cause of action
known as Ram Janmabhumi in Suit 5 cannot be

temple, for whose delivery of charge and considered to be barred by limitation on a proper
management Nirmohi Akhara had filed construction of the basis of the

its suit. In response to the injunctive relief sought cause of action for the institution of the suit.
by the plaintiffs, Nirmohi Akhara
The Suit by Nirmohi Akhara (Suit 3) was for
set up the plea that it alone has a right to control, management and charge of what it
supervise and repair or even to
described as the Ram Janmabhumi temple. Its
reconstruct the temple if necessary. Nirmohi claim of being a shebait had not,
Akhara set up the plea that the trust
as of the date of the institution of Suit 3, been
which has been set up in 1985 was with an adjudicated. It was not a de-jure
―obvious design‖ to damage the title
shebait (there being no deed of dedication) and its
and interest of the Nirmohi Akhara. On the claim of being a de facto
maintainability of Suit 5, both the
shebait had to be established on evidence. Suit 5 is
PART N founded on the plea that the

479

280
needs and concerns of the deity of Lord Ram were were not being adequately protected in the earlier
not being protected and that suits including those instituted

the parties to the earlier suits were pursuing their by the Hindu parties. The reasons which weighed
own interests. This with Justice Agarwal in holding

apprehension as the basis of Suit 5 is not without Suit 5 to be within limitation, to the extent
substance. For, Nirmohi Akhara summarised above, commend

in its defence travelled beyond the claim of themselves for acceptance. On the basis of the
management and charge, seeking to above discussion, it must be held

PART N that Suit 5 is instituted within the period of

limitation.
480
PART N
place reliance on its alleged ―right and titles‖ and
its ―title and interest‖ as noted 481

above. The Sunni Central Waqf Board made joint N.8 The Suit of 1885 and Res Judicata
cause with Nirmohi Akhara by
Issues
supporting the cause of Nirmohi Akhara as a
shebait, to buttress its challenge to 430. The plea of res judicata hinges on the content
and outcome of a suit which
the entitlement of the deity to protect its interests
through a next friend. Nirmohi was instituted in 1885 by Mahant Raghubar Das
seeking a decree for the
Akhara has an interest hostile to the deity when it
speaks of its own ‗title and construction of a temple at Ramchabutra. Specific
issues on whether the doctrine
interest‘. In this backdrop, the cause pleaded in Suit
5 at the behest of the deity of of res judicata is attracted were drawn up in Suits 1,
4 and 5, thus:
Lord Ram cannot be held to be beyond limitation.
Suit 1
429. Mr Parasaran submitted that Suit 5 essentially
looks to the future and for Issue 5(a):- Was the property in suit involved in
Original Suit No. 61/280 of 1885
the need to construct a temple dedicated to Lord
Ram on the site of Ram in the Court of Sub-Judge, Faizabad, Raghubar Das
Mahant v Secretary of State
Janmabhumi. Dr Dhavan criticised this as well as
the constitution of the trust of for India and others.

1985 and the Nyas as part of a wider agenda which Issue 5(b):- Was it decided against the plaintiff.
led to the event of 1992. This
Issue 5(c):- Was the suit within the knowledge of
criticism in our view cannot be factored in while Hindus in general and were all
determining whether as a matter
Hindus interested in the same.
of law, Suit 5 is barred by limitation. Simply put,
Issue 5(d):- Does the decision bar the present suit
Suit 5 contains a plea that by
by principles of res judicata
virtue of the deity not being a party to the earlier
and in any other way.
suits, its interests and concerns
Suit 4

281
Issue 7(a):- Whether Mahant Raghubar Dass, The plaint of 1885
plaintiff of Suit No. 61/280 of 1885
431. The Suit of 1885 was instituted by Mahant
had sued on behalf of Janmasthan and whole body Raghubar Das, describing
of persons interested in
himself as ―Mahant Janamsthan situated at
Janmasthan. Ayodhya‖. The suit was initially

Issue 7(b):- Whether Mohammad Asghar was the instituted only against the Secretary of State for
Mutawalli of alleged Babri India. The plaint in the suit of

Masjid and did he contest the suit for and on behalf 1885 is as under:
of any such mosque.
―IN THE COURT OF MUNSIF SAHIB
Issue 7(c):- Whether in view of the judgment in the BAHADUR Mahant Raghubar Das Mahant
said suit, the members of the Janmsthan Situated at Ayodhya Plaintiff

Hindu community, including the contesting versus

defendants, are estopped from
Secretary of State for India
PART N
PART N
482
483
denying the title of the Muslim community,
including the plaintiffs of the present in the Session of Council Defendant

suit, to the property in dispute; if so, its effect. The plaintiff abovenamed Submit as under:

Issue 7(d):- Whether in the aforesaid suit, title of Suit for grant of permission for construction of
the Muslims to the property in Mandir, i.e., prohibition to the defendant that
plaintiff should not be restrained from construction
dispute or any portion thereof was admitted by of Mandir on chabootraJanmashtan situated at
plaintiff of the that suit; if so, its Ayodhya, North 17 feet, East 21 feet, South 17
feet, West 21 feet and the value of the suit cannot
effect. be fixed as per market rate therefore as per Item
No. 17, paragraph 6, Appendix-II, Act, 1870, court
Issue 8 - Does the judgment of case No. 6/280 of
fee was affixed and the position of the site can be
1885, Mahant Raghubar Dass
known very well from the attached map/sketch.
v Secretary of State and others, operate as res
Section 1: That the place of janmsthan situated at
judicata against the defendants in
Ayodhya City, Faizabad is a very old and sacred
suit. place of worship of Hindus and plaintiff is the
Mahant of this place of worship.
Suit 5
Section 2: That the chabootra janmasthan is East-
Issue 23:- Whether the judgment in Suit No. 61/280 West 41 feet and North-South 17 feet. Charan
of 1885 filed by Mahant Paaduka is fixed on it and small temple is also
placed which is worshipped.
Raghubar Das in the Court of Special Judge,
Faizabad is binding upon the Section 3: That the said chabootra is in the
possession of the plaintiff. There being no building
plaintiffs by application of the principles of on it, the plaintiff and other faqirs are put to great
estoppel and res judicata as alleged by hard ship in summer from heat, in the monsoon
from rain and in the winter from extreme cold.
the defendants 4 and 5.
Construction of temple on the chabootra will cause

282
no harm to anyone. But the construction of temple ―East-West 41 feet and North-South 17 feet.‖
will give relief to the plaintiff and other faqirs and
pilgrims. It was pleaded that there was a Charan Paduka
fixed on it and that there was a
Section 4: That the Deputy Commissioner Bahadur
of Faizabad from March or April 83, because of the small temple which was worshipped. The plaintiff
objection of a few Muslims opposed the claimed to be in possession of
construction of the mandir, this petitioner sent a
the Chabutra. The plaintiff averred that he and
petition to the local government regarding this
other faqirs were inconvenienced
matter where no reply received about this petition.
Then the plaintiff sent a notice as required under in inclement weather and that the construction of a
Section-444 of the Code (of Civil Procedure) on temple ―on the Chabutra‖
18th August, 1883 to the office of Secretary, Local
Government but this too remained unreplied. would not cause harm to anyone else. However, it
Hence the cause for the suit arise from the date of was stated that the Deputy
prohibition at Ayodhya under the jurisdiction of the
Court. Commissioner of Faizabad had opposed the
construction of the temple and
Section 5: That a well-wishing subject has a right
to construct any type of building which it wishes as despite a notice under the Code of Civil Procedure
the land possessed and owned by it. It is the duty of dated 18 August 1883, the
fair and just government to protect its subjects and
government had not taken any action. The basis of
provide assistance to them in availing their rights
the claim was that a ―subject‖
and making suitable bandobast for maintenance of
law and order. Therefore the plaintiff prays for has a right to construct a building on land which is
issue of the decree for construction of temple on possessed and owned by him.
chabootra – Janmasthan situated at Ayodhya North
17 feet, East 41 feet, South 17 feet and West 41 PART N
feet and also to see that
485
PART N
The defence in 1885
484
432. Though the Muslims were originally not
the defendant does not prohibit and obstruct the impleaded as parties to the suit,
construction of mandir and the cost of the suit
should be ordered to be borne by the defendant. Mohd Asghar, in his capacity as a Mutawalli
applied to be impleaded and was
I Raghubar Das Mahant Janmasthan, Ayodhya
Certify that the contents of the plaint and all five made a party to the suit. In his written statement,
points are true and correct to the best of my Mohd Asghar set up a plea that
knowledge and belief.
the mosque was constructed by Babur. He stated
Signature of Mahant Raghubardas in Hindi script.‖ that ownership could not be

(Emphasis supplied) claimed by the plaintiff who had not produced any
material originating in the
The plaintiff averred that the place of the
Janmabhumi is ancient and sacred and emperor or the ruler of the time in support of the
plea. Essentially, the defence
is a place of worship for the Hindus. The plaintiff
claimed to be the Mahant of this was that:

place of worship. The ―chabootra janamsthan‖ (i) The plaintiff had no title to the Chabutra;
was described as admeasuring

283
(ii) Ingress and egress for the purposes of worship cannot be objection to their ownership and the area
does not prove ownership; surrounding around the wall of the Masjid and on
the outer door word Allah is engraved.‖
(iii) The Chabutra came up in 1857; and
Despite the above findings on possession by and
(iv) The construction of the Chabutra did not ownership of the Hindus, the
confer any right of ownership and
suit was dismissed because a serious breach of law
new construction on it had been restrained by the and order was apprehended.
government as a result
In appeal, the judgment of the trial court dismissing
of which a hut which was set up by a faqir had the suit was affirmed by the
been demolished.
District Judge, Faizabad on 18/26 March 1886. The
It was argued that the spot was disputed between District Judge held that while
the Hindus and Muslims
it was unfortunate that a mosque had been
resulting in a communal incident. constructed on land held sacred by

Findings the Hindus, an event which had occurred over three

centuries earlier could not be
433. In his judgment dated 24 December 1885, the
Sub-Judge at Faizabad remedied:

accepted the possession and ownership of the ―It is most unfortunate that a Masjid should have
Hindus of the area surrounding been built on land specially held sacred by the
Hindu, but as that event occurred 356 years ago it
the wall of the Masjid. However, the Sub-Judge
is too late to remedy the grievance all that can be
held that if permission for the
done is to maintain that parties in status quo.‖
PART N
The District Judge noted on a site inspection that
486 the Chabutra had been

construction of the temple were granted, a serious occupied by the Hindus on which there was ―a
situation endangering law and small superstructure of wood, in

order would arise between the two communities. PART N

The Sub-Judge held:
487
―Over and above this, on the temple situated on
the form of tent‖. The Chabutra was said to indicate
the chabootra an idol of Thakurji is kept which is
the birth-place of Lord Ram.
being worshipped. The chabootra is in the
possession of the plaintiff and whatever is offered While maintaining the dismissal of the Suit, the
on it is taken by the plaintiff. The possession of District Judge came to the
plaintiff is proved by the witnesses of the plaintiff
and railing wall separating the boundary of Hindus conclusion that the observations on possession and
and Muslims exists from a long period... In the year ownership in the judgment of
1855, after the quarrel between Hindus and
Muslims a wall in the form of the railing was the trial judge were redundant and were hence to be
erected to avoid controversy. So that Muslims may struck off. The judgment of
worship inside it and Hindus may worship outside
the first appellate court was carried before the
it. So the outside land with chabootra which is in
Judicial Commissioner, Oudh in a
the possession of the plaintiff belongs to Hindus.
Though the place where Hindus worship they hold second appeal, who affirmed the dismissal of the
its possession since old because of which there suit on 2 November 1886. The

284
Judicial Commissioner observed: (iii) The availability of a limited right of access to
the Hindus;
―The matter is simply that the Hindus of Ajudhia
want to erect a new temple of marble … over the (iv) The restraint imposed by the executive on
supposed holy spot in Ajudhia said to be the attempted encroachments by
birthplace of Sri Ram Chandar. Now this spot is
situate within the precincts of the grounds the Hindus; and
surrounding a mosque constructed some 350 years
(v) The rejection of the claim of the Hindus to
ago owing to the bigotry and tyranny of the
ownership and possession.
Emperor Baber-who purposely chose this holy spot
according to Hindu legend- as the site of his 435. All the three Judges of the Allahabad High
mosque. The Hindus seem to have got very limited Court rejected the plea of res
rights of access to certain spots within the precincts
adjoining the mosque and they have for a series of judicata. Justice S U Khan held that the only thing
years been persistently trying to increase their which had been decided in the
rights and to erect building over two spots in the
enclosure. (1) Sita ki Rasoi (b) Ram Chandar ki Suit of 1885 was that the status quo should be
Janam Bhumi. The executive authorities have maintained in order to obviate the
persistently repressed these encroachments and
likelihood of riots between the two communities. In
absolutely forbid any alteration of the ‗status quo‘.
his view:
I think this a very wise and proper procedure on
their part and I am further of opinion that Civil ―Refusal to decide the controversy is the actual
Courts have properly dismissed the plaintiff's decision in the said suit‖.
claim. The pleas on appeal to this … are wholly
unsupported by facts in the case or by any Assailing the above finding, Mr Naphade urged
document that appears to me … some of the that there was an error on the
reasoning of the Lower Appellant Court as to the
limitations of the Civil Court jurisdiction. However part of the learned Judge in coming to the
I approve of their final conclusion to which it has conclusion that nothing substantial had
come – and I see no reason to interfere with its
been decided in the Suit of 1885. He submitted that
order modifying the wording of part of the
the judgment of the Judicial
judgment of the Court of First Instance. There is
nothing whatever on the record to show that Commissioner indicated that Hindus had a limited
plaintiff is in any sense the proprietor of the land in right of access and that their
question. This appeal is dismissed with costs of all
Courts.‖ claim of possession and ownership stood rejected.

PART N PART N

488 489

Submissions 436. Justice Sudhir Agarwal held that in the Suit of

1885, the only dispute was
434. Relying on the above observations of the
Judicial Commissioner, Mr in regard to the construction sought to be made on
the Chabutra. Hence, the suit
Shekhar Naphade, learned Senior Counsel
emphasised five facets from the did not relate to the entirety of the disputed site or
building and the right of
decision:
ownership or possession in respect of any part of
(i) The existence of the mosque; the land in dispute was not
(ii) The construction of a Chabutra in close-
proximity;

285
involved. Justice Sudhir Agarwal held that unlike Hindus were aware of the suit. A reasonable
the suits which the High Court inference can be drawn from

was adjudicating upon, only a portion of the primary facts even if there is no direct evidence of
property was involved in the Suit of the awareness of the

1885. Hindus of the institution of the earlier suit.

437. Assailing these findings, Mr Naphade urged Justice D V Sharma, while coming to the
that: conclusion that the bar of res judicata

(i) Justice Sudhir Agarwal failed to notice the was not attracted, held that the earlier suit was not
observations of the Judicial of a representative character

Commissioner in the earlier suit to the effect that since the requirements of public notice under
the Hindus had a limited Section 539 of the Code of Civil

right of access and no right of possession or Procedure 1882 were not complied with. The
ownership; learned Judge observed that

(ii) The finding on the point of res judicata is neither were the parties to the earlier suit the same
contrary to the decision of this as those in the present

Court in K Ethirajan v Lakshmi261, where it has proceedings, nor was the subject matter identical
been held that the since the earlier suit only

principle of res judicata would be attracted even in related to the Chabutra. Assailing these findings,
a situation where in the Mr Naphade urged that the

previous suit only a portion of the property was in plaint in the earlier suit was for the benefit of the
dispute, whereas in a Hindus; the Secretary of State in

latter suit the whole of the property forms the Council represented all segments of the community
subject matter of the claim; and, in any event, the

and absence of a public notice under Section 539 would

not obviate the bar of res
(iii) Justice Agarwal also held that there was
nothing to show that the Hindus judicata. In his submission, the application of
Explanation VI to Section 11 of the
at large were aware of the previous suit. There was
a serious situation of CPC262 is not subject to Order 1 Rule 8.

law and order which gave rise to a dispute between 438. Apart from assailing the findings which have
the two communities been recorded by each of the

at or about the time when the Suit of 1885 was three judges of the Allahabad High Court on the
instituted. Therefore, an plea of res judicata, Mr Naphade

inference can be drawn under Section 114 of the has urged that the provisions contained in Section
Evidence Act that the 11 of the CPC 1908 stand

261 (2003) 10 SCC 578 attracted for the following reasons:

PART N (i) The matter has been directly and substantially

in issue in the former suit
490

286
between the parties since: to follow the provisions of Section 30 of the Code
262 Section 11 provides thus : Explanation VI – of 1882 (akin to Order 1 Rule 8
Where persons litigate bona fide in respect of a
public right or of a private right claimed in of the CPC 1908) should make no difference since
common for themselves and others, all persons the provisions of Section 11
interested in such right shall, for the purposes of
are not subject to Order 1 Rule 8.
this section, be deemd to claim under the persons
so litigating. Mr Naphade also urged that the principle of
constructive res judicata under
PART N
Explanation IV to Section 11 is attracted. Finally,
491
he submitted that the earlier
(a) the claim of ownership of possession of the
findings in the Suit of 1885 would operate as issue
Hindus was rejected
estoppel and since the order
by the Judicial Commissioner in the Suit of 1885;
in the earlier suit was in rem; all Hindus would
and
stand bound by the conclusion. He
(b) there was no challenge to the existence of the
PART N
mosque in the
492
previous suit as a consequence of which there is an
implicit urged that the plan, which was annexed to the Suit
of 1885, was essentially the
acceptance of the title and right of the Muslims;
same and hence the principle of estoppel by record
(ii) The plaintiff in the earlier suit who described
would stand attracted.
himself as a Mahant of the
Controverting the submissions, Mr K Parasaran,
Janmasthan essentially represented the cause of the
learned Senior Counsel
Hindus and hence,
appearing on behalf of the plaintiffs in Suit 5
res judicata would apply. The earlier suit was
submitted that the principles of res
―between the same parties or
judicata are not attracted for the following reasons:
between parties under whom they or any of them
claim litigating under the A. Parties are different:
same title‖; and (i) Neither the deities (the plaintiffs in Suit 5) nor
the Sunni Central
(iii) The cause of action in the former suit is the
same as that in the present Waqf Board (the plaintiff in Suit 4) were parties to
the Suit of 1885;
batch of cases. The title to the property claimed by
the Hindus is the same and
in both the suits and the cause of action is based on (ii) The Suit of 1885 was not instituted by Mahant
the right to construct Raghubar Das in a
the temple. representative capacity.
On these grounds, Mr Naphade submitted that the B. The suit was for asserting a personal right to
bar of res judicata is attracted construct a temple on the
under Section 11 read with Explanation VI of the Chabutra:
CPC. He urged that the failure

287
(i) No application under Section 30 of the CPC juridical personality is an issue, which goes beyond
1882 which was in force the relief of the

when the earlier suit was instituted, corresponding construction of a temple sought in the Suit of 1885.
to Order I Rule 8
D. The suit properties are distinct:
of the CPC 1908 was filed;
(i) In the Suit of 1885, the subject matter was only
(ii) Neither the deities nor the Hindu public the Chabutra
claimed any right through
measuring 17x21 feet; and
Mahant Raghubar Das in 1885;
(ii) In the present proceedings, the suit property in
(iii) In Suit 4, an order was passed on 8 August both Suits 4 and 5
1962 under which the
comprises of the inner and outer courtyard.
plaintiffs sued in their representative capacity on
behalf of the E The Suit of 1885 was instituted when the CPC
1882 was in force. Section
Muslims and defendant nos 1 to 4 were permitted
to be sued on 13 of the CPC 1882 dealt with res judicata.
Explanation V as it stood only
behalf of the Hindus; and
covered persons who were litigating in respect of a
PART N private right claimed in

493 common for themselves and others. In the CPC

1908, the expression
(iv) Even assuming that the earlier suit was filed on
behalf of all Hindus, 263 1960 (1) SCR 773

the plaintiff-deities in Suit 5 are not bound by its PART N

outcome in view of
494
the decision of this Court in Narayan Bhagwantrao
Gosavi ―public right‖ was added to Explanation VI in
view of the provisions of
Balajiwale v Gopal Vinayak Gosavi263.
Section 91. The provisions of the CPC are both
C. Issues and reliefs sought in the earlier suit are procedural and
different:
substantive. In the Suit of 1885 only a private right
(i) The Suit of 1885 was against the Secretary of was sought to be
State for India, for
enforced, whereas in the present proceedings a
permission to construct a temple; public right to worship is

(ii) The present proceedings pertain to the character sought to be enforced. Even if the CPC 1882 was to
of the property be applied, which law

whether it is a public mosque or a place of public prevailed as on the date of the filing of the Suit of
worship for 1885, the findings in that

Hindus; and suit (which sought to enforce only a private right)

would not operate as res
(iii) In Suit 5, the issue as to whether ‗Asthan Ram
Janmabhumi‘ is a judicata.

288
Analysis there is a claim in respect of a public right or a
private right claimed in common
439. The applicability of Section 11 is premised on
certain governing principles. together with others. It is only then that all persons
who are interested in such a
These are:
right would be deemed, for the purpose of the
(i) The matter directly and substantially in issue in Section, to claim under the
the suit should have been
persons so litigating.
directly and substantially in issue in a former suit;
Order 1 Rue 8264 contains provisions under which
(ii) The former suit should be either between the one person may sue or defend
same parties as in the latter
a suit on behalf or for the benefit of all persons
suit or between parties under whom they or any of interested.
them claim litigating
264 Order 1 Rule 8
under the same title; provides thus : One person may sue or defend on
behalf of all in same interest— (1) Where there are
(iii) The court which decided the former suit
numerous persons having the same interest in one
should have been competent to try
suit,— (a) one or more of such persons may, with
the subsequent suit or the suit in which the issue the permission of the Court, sue or be sued, or may
has been subsequently defend such suit, on behalf of, or for the benefit of,
all persons so interested; (b) the Court may direct
raised; and that one or more of such persons may sue or be
sued, or may defend such suit, on behalf of, or for
(iv) The issue should have been heard and finally the benefit of, all persons so interested. (2) The
decided by the court in the Court shall, in every case where a permission or
direction is given under sub-rule (1), at the
former suit.
plaintiff's expense, give notice of the institution of
PART N the suit to all persons so interested either by
personal service, or, where, by reason of the
495 number of persons or any other cause, such service
is not reasonably practicable, by public
Explanation VI to Section 11 is in the nature of a advertisement, as the Court in each case may
deeming provision which direct. (3) Any person on whose behalf, or for
whose benefit, a suit is instituted or defended,
extends the ambit of the expression ―between
under sub-rule (1), may apply to the Court to be
parties under whom they or any of
made a party to such suit. (4) No part of the claim
them claim, litigating under the same title‖. Under in any such suit shall be abandoned under sub-rule
Explanation VI, where persons (1), and no such suit shall be withdrawn under sub-
rule (3), of rule 1 of Order XXIII, and no
litigate bona fide in respect of a public right or a agreement, compromise or satisfaction shall be
private right which they claim in recorded in any such suit under rule 3 of that Order,
unless the Court has given, at the plaintiff's
common for themselves and others, all persons expense, notice to all persons so interested in the
interested in such a right, shall manner specified in sub-rule (2). (5) Where any
person suing or defending in any such suit does not
be deemed to claim under the persons so litigating.
proceed with due diligence in the suit or defence,
In other words, to attract
the Court may substitute in his place any other
Explanation VI, it is necessary that there must be a person having the same interest in the suit. (6) A
bona fide litigation in which decree passed in a suit under this rule shall be
binding on all persons on whose behalf, or for

289
whose benefit, the suit is instituted, or defended, as section, be deemed to claim under the
the case may be. Explanation.—For the purpose of
determining whether the persons who sue or are persons so litigating.
sued, or defend, have the same interest in one suit,
Explanation VI – Where persons
it is not necessary to establish that such persons
have the same cause of action as the person on litigate bonafide in respect of a public
whom behalf, or for whose benefit, they sue or are
sued, or defend the suit, as the case may be. right or of a private right claimed in

PART N common for themselves and others, all

496 persons interested in such right shall,

440. The Suit of 1885 was instituted when the CPC for the purpose of this section, be
1882 was in force. Section
deemed to claim under the persons so
13 contained a provision in regard to res judicata.
Section 13 corresponds to litigating.

Section 11 of the CPC 1908, with certain material It may be noted at this stage that Section 92 of the
differences. Explanation V to CPC 1908 contains a

Section 13 contained a deeming provision stating provision corresponding to Section 539 of the CPC
when persons would be 1882. However, the CPC

deemed to claim, litigating under the same title. 1908 introduced Section 91 to deal with public
However, Explanation V to nuisances and other wrongful acts

Section 13 covered only persons litigating in PART N

respect of a private right claimed in
497
common for themselves and others. In contrast,
affecting the public. The words ―of public right‖
Explanation VI to Section 11 of
were introduced in Explanation VI
the CPC 1908 covers persons litigating in respect
of Section 11 of the CPC 1908 in order to give due
of a public right or a private
effect to suits relating to public
right in common for themselves and others. This
nuisances incorporated in Section 91. Thus, the
distinction between Explanation
deeming provision contained in
V of Section 13 in the CPC 1882 and Explanation
Explanation V to Section 13 of the CPC 1882 was
VI to Section 11 of the CPC
expanded in the corresponding
1908 is brought out in the following table
provision contained in Explanation VI to Section
containing the two provisions:
11 of the CPC 1908 to cover a
Section 13 CPC 1882 Section 11 CPC 1908
case where persons litigate bona fide in respect of a
Explanation V – Where persons private right or a public right

litigate bonafide in respect of a private claimed in common with others. When the earlier
Suit of 1885 was instituted,
right claimed in common for themselves
Explanation V had no application to a situation
and others, all persons interested in where persons were litigating in

such right shall, for the purpose of this

290
respect of a public right as distinct from a private Justice Sudhir Agarwal rejected the submission that
right. it was the CPC 1882 that

441. Mr K Parasaran, learned Senior Counsel should be applied while analysing the application
argued that the provisions of the of the principles of res judicata.

CPC contain provisions some of which relate to However, even on the basis that it was the CPC
matters of procedure while others 1908 which would apply, the

deal with matters of substance (See Durgesh learned Judge came to the conclusion that the Suit
Sharma v Jayshree265). For of 1885 and the findings

instance, it has been held that the right to file an which were recorded by the Judicial Commissioner
appeal from a judgment and would not operate as res

decree in a suit is a substantive right and this right judicata.

is governed by the law which
Mr K Parasaran‘s submissions essentially boil
prevailed on the date of the institution of the suit. down to this: according to him
Hence, in Garikapati Veeraya v
Explanation V to Section 13 of the CPC 1882
N Subbiah Choudhry266, a Constitution Bench of (which held the field when the Suit
this Court held:
of 1885 was instituted) applied when the earlier
―23... (iii) The institution of the suit carries with it suit was being litigated on the
the implication that all rights of appeal then in
force are preserved to the parties thereto till the rest basis of a private right claimed in common with
of the career of the suit. (iv) The right of appeal is a others. Hence, a subsequent suit
vested right and such a right to enter the superior
for agitating a public right claimed in common with
court accrues to the litigant and exists as on and
others is not barred by the
from the date the lis commences and although it
may be actually exercised when the adverse principles of res judicata as embodied in
judgment is pronounced such right is to be Explanation V. The ambit of the
governed by the law prevailing at the date of the
institution of the suit or proceeding and not by the explanation was expanded in the CPC 1908 while
law that prevails at the date of its decision or at the introducing Explanation VI to
date of the filing of the appeal.
265 (2008) 9 SCC 648 266 1957 SCR 488 Section 11 to cover a claim based on a public as
well as a private right asserted
PART N
in common with others. Mr K Parasaran urges that
498 this provision which is

(v) This vested right of appeal can be taken away introduced in Explanation VI cannot be construed
only by a subsequent enactment, if it so provides to bar a suit instituted after the
expressly or by necessary intendment and not
otherwise.‖ enforcement of the CPC 1908 on the basis of an
adjudication made in a suit
Mr K Parasaran urged that Explanation V to
Section 13 of the CPC 1882 PART N

excluded the application of res judicata where the 499

earlier suit was for litigating a
which was instituted in 1885 when the CPC 1882
public right claimed in common with others. held the field. This, in his

291
submission would not be a matter of procedure but interested, in the manner as directed or by public
would take away a advertisement. A person on

substantive right accruing to a party if the bar of res PART N

judicata would apply.
500
Consequently, unless there was an explicit
stipulation in the CPC 1908 providing whose behalf or for whose benefit a suit has been
instituted or is being defended
for the principle of res judicata to apply to suits
agitating a public right may apply to be impleaded as a party to the suit.
Under sub-rule 4, no part of the
retrospectively, the suit instituted in 1885 cannot
fall within the ambit of the bar claim in the suit can be abandoned and the suit
cannot be withdrawn nor can a
within Explanation VI of the CPC 1908.
compromise agreement or satisfaction be recorded
For the purposes of the present proceedings, it is unless notice has been
not really necessary to analyse
furnished to all persons interested. Subject to
in any great detail this submission by Mr K compliance with the provisions
Parasaran for, in any view of the
contained in Order I Rule 8, a decree in such a suit
matter, it is evident that the Suit of 1885 would not is binding on all persons on
operate as res judicata either
whose behalf or for whose benefit the suit is
on the application of the provisions of Section 13 instituted or defended.
of the Code of 1882 or on the
In Kumaravelu Chettiar v T P Ramaswami
application of Section 11 of the Code of 1908. The Ayyar267, the Privy Council held:
pleadings and the findings in
―Explanation 6 is not confined to cases covered
the earlier Suit of 1885 show that Mahant by Order 1, Rule 8 but extends to include any
Raghubar Das was only asserting a litigation in which, apart from the Rule altogether,
parties are entitled to represent interested persons
right that was personal to him. The earlier suit was other than themselves.‖
not instituted in a
The above principle was followed in a decision of
representative capacity; the issues framed, and three judges of this Court in
reliefs sought were distinct and
Narayana Prabhu Venketeswara Prabhu v Narayana
so were the suit properties. Prabhu Krishna

442. Before a suit can be prosecuted or defended Prabhu268. This Court held that in a partition suit,
under Order I Rule 8, it is each party claiming that the

essential that there must be numerous persons property is joint, asserts a right and litigates under a
having the same interest in a suit. title which is common to

Before a person can be allowed to either prosecute others who make identical claims. Hence:
or defend the suit on behalf
―20…In a partition suit each party claiming that
of others interested, specific permission of the the property is joint, asserts a right and litigates
court is mandated. Sub-rule 2 of under a title which is common to others who make
identical claims. If that very issue is litigated in
Order I Rule 8 requires notice of the institution of
another suit and decided we do not see why the
the suit to all persons

292
others making the same claim cannot be held to be res judicata in the facts of the present case needs to
claiming a right ―in common for themselves and be analysed. The position
others‖. Each of them can be deemed, by reason of
Explanation VI, to represent all those the nature of which emerges on the touchstone of the principles
whose claims and interests are common or contained in Section 11 is as
identical. If we were to hold otherwise, it would
follows:
necessarily mean that there would be two
inconsistent decrees. One of the tests in deciding (i) The first point to be considered is whether the
whether the doctrine of res judicata applies to a parties to the subsequent
particular case or not is to determine
suit are the same as the parties to the earlier suit or
267 AIR 1933 PC 183 whether they litigate
268 (1977) 2 SCC 181
under the same title. The earlier suit was instituted
PART N by Mahant Raghubar
501 Das describing himself as the Mahant of the
Janmasthan situated at
whether two inconsistent decrees will come into
existence if it is not applied. We think this will be Ayodhya. The suit was not instituted by Raghubar
the case here.‖ Das as the Mahant of
443. In Gurushiddappa Gurubasappa Bhusanur v 269 AIR 1937 Bombay
Gurushiddappa 238
Chenavirappa Chetni269, a learned Single Judge of PART N
the Bombay High Court
502
(Justice Rangnekar) held:
Nirmohi Akhara. Conspicuously absent in the Suit
―Order 1, rule 8, is exhaustive of what it says, and of 1885 is any reference
it is clear from it that it is only when the parties are
numerous that a suit can be brought under the to Nirmohi Akhara. Hence, the primary
provisions of Order I, rule 8. That it is possible for requirement for the applicability of
a suit to be a representative suit within the meaning
of Explanation VI, although it need not come under Explanation VI to Section 11 is not attracted. The
Order I, rule 8, and, therefore, need not be brought Suit of 1885 was a suit
under the provisions of that Order, has been held
instituted by Mahant Raghubar Das in his personal
from very earliest times in this country…
capacity. It was not a
Explanation VI, therefore, is not confined to cases
covered by Order I, rule 8, but would include any suit either in his capacity as the Mahant of Nirmohi
litigation in which, apart from the rule altogether, Akhara or a suit
parties are entitled to represent interested persons
other than themselves.‖ instituted jointly on behalf of the Hindus;

Hence, for the purpose of considering Mr (ii) Neither the deities who are the first and second
Naphade‘s arguments, we proceed on plaintiffs to Suit 5 nor the

the principle that the provisions of Order I Rule 8 Sunni Central Waqf Board which is the plaintiff in
do not control the applicability of Suit 4 were parties to the

Explanation VI to Section 11 of CPC 1908. The Suit of 1885. Mahant Raghubar Das instituted the
applicability of the principles of earlier suit initially

293
impleading only the Secretary of State for Council his Report dated 25.05.1950, are being annexed to
in India. Later, Mohd this plaint and made part of it as Annexures I, II
and III, respectively.‖
Asghar was impleaded in his capacity as a
Mutawalli. The parties to the After the decision of the Constitution Bench in Dr
M Ismail Faruqui v Union of
earlier proceedings were distinct;
India270, the dispute now stands restricted only to
(iii) The relief that was sought in the earlier suit the inner and outer courtyards,
was permission to construct a
described in Annexure I to the plaint in Suit 5. The
temple on Ramchabutra. In the present High Court adjudicated on this
proceedings, the reliefs, which
dispute as circumscribed by the directions of this
have been sought, require, inter alia an adjudication Court. The suit property in suits
in regard to the
4 and 5 is larger than the Chabutra admeasuring 17
character of the disputed property namely whether x 21 feet which formed the
it is a mosque which is
subject matter of the earlier Suit of 1885 though,
dedicated for the public or whether it is a place of undoubtedly the Chabutra also
worship for the Hindus;
forms a part of the suit property.
and
444. In V Rajeshwari (Smt) v T C
(iv) The Suit of 1885, only dealt with the Chabutra Saravanabava271, the appellant instituted a
at the Janmasthan
suit in 1984 for seeking a declaration of title and
admeasuring 17 x 21 feet, which was claimed to be for recovery of possession of
in the possession of
property admeasuring 1817 sq feet. Earlier in 1965,
the plaintiff. The map showing the subject matter one of her predecessors-in
of that suit has been
title had instituted a suit for declaration of title and
annexed to the proceedings. On the other hand, the for possession of an area of
suit property in Suits 4
over 240 sq feet situated on the upper floor of the
and 5 comprises of both the inner and the outer building standing on the
courtyard. In Suit 5, the
property against the respondent. The High Court
relief which has been claimed is: held that the issue of title and

PART N possession had been decided in the suit instituted

by the predecessor-in-title of
503
270 (1994) 6 SCC 360
―a declaration that the entire premises of Sri Ram
271 (2004) 1 SCC 551
Janma Bhumi at Ayodhya, as described and
delineated in Annexures I, II and III belong to the PART N
plaintiff deities.‖
504
Paragraph 2 of the plaint describes annexures I, II
and III: the appellant and the subsequent suit was barred by
res judicata. While reversing
―two site plans of the building premises and of the
adjacent area known as Sri Rama Janma Bhumi, the decision of the High Court, this Court held:
prepared by Shiv Shankar Lal pleader… along with

294
―15. Reverting back to the facts of the present PART N
case, admittedly, the plea as to res judicata was not
taken in the trial court and the first appellate court 505
by raising necessary pleadings. In the first appellate
Mahant of the Janmasthan. He did not set up any
court the plaintiff sought to bring on record the
plea as the Mahant of
judgment and decree in the previous suit, wherein
his predecessor-in-title was a party, as a piece of Nirmohi Akhara. The claim was personal to him;
evidence. He wanted to urge that not only he had
succeeded in proving his title to the suit property (ii) Neither the plaintiff in Suit 4 nor the plaintiff
by the series of documents but the previous deities in Suit 5 were parties to
judgment which related to a part of this very suit
property had also upheld his predecessor's title the earlier proceedings. The Suit of 1885 was not
which emboldened his case. The respondent instituted in a
thereat, apprised of the documents, still did not
representative capacity for and on behalf of the
choose to raise the plea of res judicata. The High
Hindus nor was there any
Court should not have entered into the
misadventure of speculating what was the matter in pleading to that effect. Mahant Raghubar Das did
issue and what was heard and decided in the not set up any claim to
previous suit. The fact remains that the earlier suit
was confined to a small portion of the entire shebaiti rights nor did the adjudication deal with
property now in suit and a decision as to a specified any claim of a shebaiti
part of the property could not have necessarily
constituted res judicata for the entire property, character. On the other hand, this forms the very
which was now the subject-matter of litigation.‖ basis of the claim in Suit
(Emphasis supplied)
3 and of the defence to the maintainability of Suit 5
445. Mr Naphade relied upon a decision of a two raised on behalf of
judge Bench in K Ethirajan v
Nirmohi Akhara;
Lakshmi272, in support of the proposition that the
(iii) The Trial Court while dismissing the Suit of
principle of res judicata under
1885 had entered a finding that
Section 11 is attracted where the issues directly and
possession and ownership of the Chabutra vested in
substantially involved
the Hindus. The suit
between the same parties in the previous and
was however dismissed on the ground that the
subsequent suits are the same,
grant of permission to raise
even though in a previous suit, only a part of the
a temple would involve a serious breach of law and
property was involved while in
order. The dismissal of
the subsequent suit, the whole of the property was
the suit on this ground was affirmed in appeal by
the subject matter of the
the District Judge.
dispute. The difficulty in accepting the plea of res
However, the finding in regard to possession and
judicata which has been urged
ownership of the
by Mr Naphade is simply this:
Chabutra was rendered redundant and was
(i) The earlier suit by Mahant Raghubar Das in accordingly directed to be
1885 was not in a
struck off. The Judicial Commissioner confirmed
representative capacity. Mahant Raghubar Das the dismissal of the suit.
claimed himself to be the
272(2003) 10 SCC 578

295
Though, the Judicial Commissioner held that the The claim in the earlier suit was distinct. The basis
Hindus seem to have a of the claim was indeed not

limited right of access to certain spots within the that which forms the subject matter of the
precincts of the adjoining subsequent suits. Similarly, there is no

mosque, he observed that there was nothing to merit in the submission based on the doctrine of
establish that the plaintiff issue estoppel or estoppel by

(Mahant Raghubar Das) is the proprietor of the record which has been faintly urged. Consequently,
land in question. This and for the above reasons,

finding rendered in a suit to which neither the there is no merit in the submissions which have
plaintiff-deities nor Nirmohi been urged by Mr Naphade,

Akhara were parties cannot operate as res judicata learned Senior Counsel objecting to the
against them; maintainability of Suit 5 on the ground of

PART N res judicata.

506 PART N

(iv) The doctrine of res judicata seeks to prevent a 507

person being vexed twice
N.9 Archaeological report
over in respect of a dispute founded on the same
cause of action. The 447. Both in the suit instituted by the Sunni Central
Waqf Board273 and in the
cause of action for the Suit of 1885 was, as seen
earlier entirely, distinct; suit instituted by the deities274, an issue was
framed on whether the disputed
and
structure of a mosque has been erected after
(v) The decision in the Suit of 1885 was in demolishing a temple which existed
personam, based on the claim
at the site.
made by the plaintiff in that suit. Any observations
in the judgment of the 448. On 1 August 2002, the High Court proposed
that an excavation be carried
Judicial Commissioner will neither bind the deities
(plaintiffs in Suit 5) who out by the Archaeological Survey of India275. The
High Court proposed that before
were not parties to the earlier proceedings nor the
Hindus. Moreover, there excavation, ASI will survey the disputed site using
Ground Penetrating Radar276
was no adjudication in the Suit of 1885 in respect
of the claim of title made or Geo-Radiology System. After objections to the
proposed directions were
by the Muslims in Suit 4.
heard, they were rejected by the High Court on 23
446. There is absolutely no merit in the contention October 2002. The ASI had a
that the principles of
GPR survey conducted by a corporate entity which
constructive res judicata will bar the subsequent submitted its report to the
suits. The parties were distinct.
High Court on 17 February 2003.The report found
the presence of ―anomaly

296
alignments across the main platform north and contemporaneous structures such as pillars,
south of the sanctum sanctorum foundations, walls slabs, flooring

corresponding to the Ramchabutra area‖. The extending over a large portion of a site‖. However,
anomalies suggested the following the survey indicated that the

position: exact nature of these anomalies could be

determined on the basis of
―…in their cross-section appearance and their
areal pattern, the ―anomaly alignments‖ may archaeological trenching. Upon receiving this
correspond to a wall foundation of some sort. In the report, the High Court directed ASI
Ram Chabutra area, the crossing patterns of those
alignments and the different stratigraphic units to conduct an excavation at the disputed site to the
from where they (emerge) suggest that they belong following extent:
to successive construction periods rather than being
―The area shown in the report of the
contemporary to one another.‖
Commissioner submitted in Suit No. 2 of 1950
273 Issue 1(b) in OOS (OOS No. 1 of 1989) covering an area of
No. 4 of 1989 as follows : ―Whether the building approximately 100x100 shown in the map plan No.
had been constructed on the site of an alleged 1 referred to by letters A,B,C,D,E,F and thereafter
Hindu Temple after demolishing the same as northern portion up to the end of the raised
alleged by defendant no. 13? If so, its effect? 274 platform and further to the west, south and east to
Issue No. 14 in OOS No. 5 of 1989 reads as the said site to the extent of 50 feet.‖
follows : ―Whether the disputed structure claimed
449. The archaeologists were directed not to
to be Babri Masjid was erected after demolishing
disturb the area where the idol of
Janma Sthan Temple at its Site?‖ 275 ―ASI‖ 276
―GPR‖ Lord Ram was installed and an area around the idol
to the extent of 10 feet. ASI
PART N
was asked not to prevent worship at the site.
508
Following this order, the High Court
The report also found that the sequence in the
issued further directions on 26 March 2003 for
southern portion of the
recording the nature of the
Ramchabutra area ―may be indicative of a
excavations found at the site and the sealing of the
flooring structure of some sort,
artefacts found in the
possibly stone slabs if its origin is ancient.‖
presence of the parties and their counsel. The ASI
Besides, the report indicated:
team was directed to maintain
―A third type of buried structures covers the entire
a record of the depth of the trenches where the
eastern boundary of the site. It consists of buried
artefacts were found as well as
mound structures with some internal texture or
structure indicative of collapsed material. Similar PART N
types of anomalies have been detected to the south-
west area just before the terrain slopes down.‖ 509

In conclusion, the GPR survey reflected a variety the layer of the strata. Photographs of the findings
of anomalies ranging from 0.5 were permitted to be taken. In

to 5.5 meters in depth ―that could be associated order to bring objectivity to the process and sub-
with ancient and serve the confidence of the

297
parties, the High Court ensured that adequate PART N
representation to both the
510
communities be maintained ―in respect of the
functioning of the ASI team and the 451. The ASI report has indicated its objectives and
methodology at the
engagement of the labourers‖. During the course of
the process, the High Court commencement of the report. The manner in which
trenches were planned for
considered various objections filed by parties with
respect to the excavation. The excavation is indicated thus:

ASI submitted its final report on 22 August 2003 to ―In planning the excavation, it was decided to
which objections were adopt the latest technique of layout of trenches
where limited spaces are available and therefore in
addressed by the Sunni Central Waqf Board and place of general practice of lay out of 10x10 m.
other parties. These objections squares divided into four quadrants of 4.25x4.25 m.
separated by 0.50 m. baulk all-round, the change in
were dealt with by the High Court. the practice was made by fixing pegs at a distance
of every 5 m in both north-south and east-west
450. A wealth of arguments have been urged on the
directions with cutting area of 4x4 m in leaving 0.5
archaeological evidence in
m baulk all around which in contiguous trenches
the present dispute. The arguments touch upon effectively left a space of 1.0 m in between two
diverse issues such as the cuttings for the easy movement of archaeologists
and labourers. One meter wide baulk was specially
findings in the report, the inferences which have provided, considering the fact that due to modern
been drawn from them, fillings and debris the trench may not collapse due
to earth pressure in a most sensitive area.‖
archaeology as an inferential science as well as the
value of archaeological The team laid trenches throughout the disputed area
except for the place where
evidence in disputes such as the present. This Court
must address, inter alia: (i) the deity has been installed and collected samples
for scientific study:
the findings of the report and the methodology
adopted; (ii) the objections raised ―Samples of plaster, floors, bones, charcoal,
palaeo-botanical remains were also collected for
against the findings of the report; (iii) the scope of scientific studies and analysis. Trenches were also
the enquiry at the present laid in the entire disputed area on all sides
excepting the area of the makeshift structure where
stage, including the degree of judicial deference to
Ram Lala is enshrined along with its periphery at a
expert evidence; (iv) The
distance of 10 feet from Ram Lala as specified by
challenge to archaeological evidence as purely the High Court. The excavation work was planned
inferential and subjective in in phased manner in particular areas as per
significant signals for anomalies pointed out by the
nature; (v) the standard of proof and (vi) the remit GPR Survey.‖
of the report and questions left
The work of excavation and its findings were
unanswered. Finally, an enquiry relevant to the documented by still and video
present controversy is the
footage. ASI has excavated ninety trenches in a
probative value of archaeological evidence in the period of five months and
determination of title which shall
submitted its report of excavation within fifteen
be adverted to in the course of the judgment. days of the completion of

298
excavation. The ASI team has carried out its task in bases. The excavation in this area also resulted in
the presence of parties and the finding of a brick circular

their counsel. Excavated material including shrine on its outer part and squarish on its inner
antiquities, objects of interest, glazed with a rectangular projection for

pottery, tiles and bones recovered from the trenches entrance in the east and a chute on its northern side.
were sealed in the presence The relevant part of the ASI

PART N report is extracted below:

511 PART N

of parties and their advocates and lodged in a 512

strong room provided by the
―Parts of the northern and western walls and their
Commissioner of Faizabad Division. foundation and the foundation of the southern and
eastern sides built of calcrete stone blocks of the
The Eastern Area disputed structure were exposed which were found
resting directly in the west over a 1.77 m wide
452. The ASI team initially took up excavation in
brick wall of earlier period, the lower part of which
the eastern area where the
has decorated stone blocks and calcrete stone
enclosure wall along with remnants of a gateway foundation and over 50 pillar bases arranged at
were noticed, below which lie regular intervals connected with the lime plastered
brick wall through a floor. The core of the wall of
floors and walls of earlier phases. The central part the disputed structure was filled with brickbats.
of the platform, known as the The pillar bases comprise some courses of brick
bats in squarish or circular formations over which
Ramchabutra was noticed in this area constructed two to five calcrete stone blocks are kept, possibly
in five stages. The main below and stone blocks as found in the northern
area, though only one decorated sand stone block
features which have been exposed are elucidated
was found in this area. Further below the
below:
abovementioned brick wall another brick wall was
―The main features exposed in this area include noticed on the top of which decorated stone blocks
fourteen extant courses of reused brickbats and were found used. In the levels further down brick
calcrete stone blocks in the enclosure wall with a structures were noticed in trenches E8 and F8,
part of 2.12 m in the middle of the wall suggesting though their full plan could not be exposed. At two
the entrance doorway which was topped by marble points, below the pillar bases, traces of earlier pillar
slabs and the floor levels consisting of lime and bases were also found in trenches F8 and F9 which
cement floors topped by marble dedicatory slabs of were connected with the second floor below the
the second half of the twentieth century. Some floor with which most of the other pillar bases were
elongated hearths and a furnace of late Mughal connected. The brick wall mentioned above was
period were found (Pl.3).‖ found badly damaged on the southern side,
possibly for taking out its bricks. This wall was
The Southern Area found extending in the northern side of the raised
platform. A brick shrine, circular on its outer and
Twenty-three trenches were excavated towards squarish on its inner plan with a rectangular
south of the raised platform. The projection for entrance in the east and a chute on its
northern side was found below the levels of
excavation resulted in nearly fifty pillars bases of
abovementioned walls. Due to steep slope in the
an earlier period being exposed
area further south of the trenches, it was not
at two points, traces of earlier pillars bases were possible to excavate there. The natural soil was
also found below the pillar reached in G7 at the depth of 10.84 m, which was

299
confirmed by digging further upto the depth of cultural sequence involving a depth of 10.80
13.20 m. (Pl.5).‖ meters. This can be divided into nine

The Western Area cultural periods (explained below) on the strength

of ―combined and corroborative
At some places remains of a brick wall having
nearly fifty courses were seen. evidences of pottery sequence, structural remains
and other datable finds‖. The
The Northern Area
report indicates that structural activities in the
The ASI team notes: excavated area had commenced

―The massive brick wall located in the southern from the Kushan period and continued in the Gupta
area was noticed running in north-south direction in and post-Gupta periods:
this area and below its level another wall was also
found as seen earlier in the southern area. The top ―Excavations have made it amply clear that the
three floors and pillar bases attached site had seen successive structural activities which
began from the middle of the Kushan level at the
PART N site. The brick and stone structures that were raised
in Kushan and the succeeding periods of Gupta and
513
post-Gupta times have added heights to the mound.
with the top floor were exposed (Pl/10). The To build further structures upon the earlier debris
interesting features of the pillar bases in this area the later people added a deposit of earth excavated
was that over the calcrete stone blocks these bases from the periphery of the mound, which belonged
were given proper finishing by providing squarish to the much earlier cultural periods. This is true for
stone blocks of sand stone encased with four the rest of the structural phases also.‖
upright stone pieces placed on the four sides for
PART N
giving support to the pillar at the base in order to
avoid any movement. The stone blocks project a 514
little above the floor.‖
The ASI report suggested that the C14
The Raised Platform determination of charcoal samples from

After the demolition of the disputed structure and the early levels (periods I to III) provide dates
in terms of the order of the High commencing from the last centuries

Court dated 5 March 2003, excavation was partly of second millennium B.C.
carried out in ninety trenches.
The ASI report, as stated above finds the existence
Parts of four trenches in the southern area were of deposits of nine cultural
under the raised platform. Here
periods. These are:
the ASI team noted brick structures, floors and
pillar bases below the floors and (i) Period – I

walls of the disputed structure on the raised Northern Black Polished Ware Level
platform as well.
This period pertains to the sixth to third century
453. Chapter III of the ASI report inter alia deals B.C. where the earliest people to
with ―Stratigraphy and
settle at the site used Northern Black Polished
Chronology‖. The report indicates that excavation Ware and other associated ware
has yielded a continuous
(Grey ware, Black slipped ware and Red ware)
which are diagnostic ceramics of

300
that period. No substantial structural activity was ―In trench G7, however, the limited area yielded
noticed except for reed animal and human figurines, bangle fragment and a
portion of votive tank all in terracotta, a hairpin in
impressions on burnt clay. The findings of the bone, a bead in glass and an antimony rod in
excavation are: copper. In trench 15, though the regular stratified
deposit was not encountered in the operation area,
―Period - I (Northern Black Polished Ware Level)
the eastern section yielded a record of regular
....Besides the pottery this level yielded broken
deposition and almost all the structural activity at
weights, fragments of votive tanks, ear-studs, discs,
the site. A massive brick construction, running into
hopscotches, a wheel made on disc, a broken
22 courses above excavated surface, is noticed at
animal figurine (all in terracotta), an iron knife
the bottom of J5-J6 which belongs to this period.
(broken), glass beads, bone point, etc. However,
The Kushan period certainly gave a spurt to
the most significant find from the level is a round
construction of structures of large dimensions
bezel in greenish glass with legend 'sidhe' in high
which attest to their public status. Besides, the
relief in Asokan Brahmi on the obverse while the
same trench provided evidence for a stone
reverse in plain (Rg.No.778).‖
structure, nature of which is not very clear.‖
(ii) Period – II
(iv) Period –IV
Sunga Level
Gupta Level
The Sunga Level relates to ‗circa second-first
This period pertains to the fourth-sixth century
century B.C‘. During this period, the
A.D. which is attested by the
site witnessed the first structural activities in stone
presence of terracotta figurines and a copper coin.
and brick. The ASI report
The ASI report indicates:
states:
―Almost 2 m thick deposit, represented by layer 7
PART N and 8 G7, by layers 9 and 10 in J5-J6 and layers 7
and 8 in trenches E8
515
PART N
―...It is in this period that the site witnessed first
structural activity in stone and brick, as noticed in 516
J3. The level is represented by terracotta objects
and F8, above the remains of the preceding period
comprising human and animal figurines, bangle
belong to Gupta times (circa fourth-sixth century
fragment, ball, wheel and a broken sealing with
A.D.), the presence of which is attested mostly by
only 'sri' letter in Brahmi extant (Rg No.701), a
terracotta figurines typical of the period and of
saddle quern and part of a lid in stone, a glass bead,
course by a copper coin (3.75 m. layer 8, G7, Rg.
a hairpin and an engraver on bone and an ivory
No.1030) bearing image of king on the obverse and
dice, besides the period pottery of the level.‖
garuda standard in upper register and legend 'sri
(iii) Period –III chandra(gupta)' in lower register on the reverse.‖

Kushan Level (v) Period –V

This period which relates to circa first-third century Post Gupta – Rajput Level
A.D. has resulted in the
This period pertains to the seventh to tenth century
finding of rich deposits of pottery. In one of the A.D. The excavation
trenches, a huge kiln was noticed
pertaining to the above period has resulted in the
at the lower levels. The findings of the excavation unearthing of a circular
are as follows:

301
subsidiary shrine belonging to the late level of this foundation trench of which cuts the red brick-crush
period: floor of the previous period. A new style of
construction is noticed in this period, however, in a
―The period is marked by the appearance of the limited area. Level of the mound was raised
knife-edge bowls and other types which belong to considerably by the material excavated from the
the period from seventh to tenth century A.D. In vicinity to lay a floor of lime mixed with fine clay
this period also structural activities were witnessed and brick-crush, over which a columnbased
in numerous phases in trench E8 and F8. A circular structure was built (evidence of pillar bases are
subsidiary shrine belonging to the late level of this available in trenches F9, F8 and G7).‖
period was exposed in trench E8-F8 (Fig 24 and
24A). Among the pottery assemblage Kushan type For sub-period-B, the ASI report indicates:
is more frequent than the period pottery.‖
―There is a circular depression specially made by
(vi) Period VI cutting the large brick pavement (Pl. 67), having
the diameter of 1.05 m. with a rectangular
Medieval –Sultanate Level projection of 0.46x0.32 m towards west. It is
interesting to note that the circular depression
This period pertains to the eleventh–twelfth century
comes in the centre of the pavement if the central
A.D. The findings of the
part is calculated on the basis of extant length of
excavation are: wall 16 or wall 17 and longitudinal length of the
alignment of pillar bases from north to south. Thus,
―A thick floor made of brick-crush floor appears, suggesting it as a place of importance. Besides, the
on the circumstantial evidence, to have been circular depression faces the central part of the
attached to a wide and massive looking north-south disputed structure over which ‗Ram Lalla‘ is
oriented brick wall (No.17) markedly inclined to enshrined. Bricks measuring 50x50x8 to 10 cm.
east (noticed in trenches D7 and E2-E1, F1 and ZF) 50x47x8 and 40x40x6 cm were used in the
which was the major structural activity of the pavement as specially made floor tiles.‖
period (circa eleventh-twelfth century A.D.).
Another wall in same orientation has been noticed The above finding for sub-period B reports the
in G2 and ZG1 at a depth of 180 cm which is existence of a circular depression,
sealed by layer 6A in G2. The red brickcrush floor
its centrality indicating it to be a place of
is noticed extending in a large area of the mound
importance. It is also stated that the
covering trenches E8, F8, G7, J5 & J6 with varying
thickness. At the same level, in trench G5, calcrete circular depression faces the central part of the
stone blocks have been noticed in formation which disputed structure over which the
may be of large dimension.‖
deity is enshrined.
PART N
In sub-period C, there is a finding of foundations to
517 support pillars or columns:

(vii) Period –VII ―In this deposit foundations to support pillars or

columns were sunk which were overlaid with a 4-5
Medieval Level
cm thick floor which had
This period lasted from the end of the twelfth to the
PART N
beginning of the sixteenth
518
century A.D and comprises of structural activities
in three sub-periods - A, B and a grid of square sandstone bases for pillars
projecting out, only a few still survive. Floor
C. In sub-period A, the excavation shows:
around most of the pillar bases is found broken
―..In sub-Period-A, a massive wall (no.16) in with pillar base foundations in much disturbed
north-south orientation was constructed, the condition.‖

302
(viii) Period –VIII 454. Chapter IV of the ASI report deals with
structures. A significant aspect of
Mughal Level
this Chapter is a section titled ―The Massive
The report indicates: Structure Below the Disputed

―The floor of the previous period (Period VII-C) Structure‖. The relevant findings are extracted
is found cut by the stone black (mostly calcrete) below:
foundations of the disputed structure (mosque).
However, the north-south wall of the Period VII-A ―From the excavation it could be inferred that
is retained as foundation for the back wall. Inside there were seventeen rows of pillar bases from
the foundation and in the immediate front part a north to south, each row having five pillar bases.
layer of rammed earth is laid which is then overlaid Due to area restriction and natural barrier, the pillar
with rammed deposit of grey coloured kankars and bases in the central part occupied by the make-shift
a thin layer of ashy deposit which contains riverine structure on the raised platform could not be
shells burnt white. The total deposit accounts for a located. Out of excavated fifty pillar bases only
thickness of about 20-25 cm, which acts as a soling twelve were completely exposed, thirty five were
for the first floor of the Mughal period inside as partially exposed and three could be traced in
well as outside of the structure to a short distance sections only. A few pillar bases were noticed
to the east forming an apron floor.‖ during earlier excavation after which a controversy
took place about their association with different
(ix) Period –IX layers and their load bearing capacity. The present
excavation has set aside the controversy by
Late and Post Mughal Level
exposing the original form of the bases having
In this period, two successive floors were laid, calcrete and stone blocks arranged and set in a
another platform was added to the proper manner over a brick foundation and their
arrangements in row including their association
east forming a terrace and subsequently two with the top floor of the structure existing prior to
successive enclosure walls were the disputed structure.

erected. Moreover: The seventeen rows of pillar bases were

constructed along the north-south running brick
―In this period to attaché a terraced platform to wall (wall 16) on the west. The distance of the first
the east of the existing one, deposits of the earlier pillar base in each row from the wall ranges from
periods were excavated and removed, in which the 3.60 to 3.86 m. Seventeen rows of pillars bases
floor of the period VII-C was cut and destroyed could be categorized in three different groups on
from the eastern area. Slightly later, a partition wall the basis of north-south distance which varies in
was added attached to the first terrace platform different groups whereas east-west distance from
along with a small step in the centre. And then was centre to centre of each pillar base vary from 2.90
added another floor inside the structure which ran to 3.30m. Six rows of the pillar bases on north and
out on the now enclosed platform and abutted to south were at the equidistance which ranges from 3
the partition wall. Sometimes later an enclosure to 3.30 m. Central five rows consisting twenty five
wall was added to the entire complex without any pillar bases show different equations – two rows on
foundation which rested over the existing floor, either sides of the central row were placed
which was provided with two gates, larger one to approximately at the distance of 5.25 m. whereas
the north and a smaller one to the east. Sometimes the other two rows on either side of these three
around this period dead bodies were buried in the rows were at the distance of 4.20-4.25 m. From this
north and south of the disputed structure which it could be easily concluded that the central part of
have cut the top floors and which are sealed by the pillared structure was important and special
layer 1.‖ treatment was given to it in architectural planning.

PART N In the southern area only one decorated sand stone

was found over a pillar base while in the northern
519
area many of the pillar bases were found topped by

303
a plain sand stone block set over the brick bat 3.5 cm outside the circular outer face as a pranala
foundation having calcrete blocks over them (Pl. to drain out the water, obviously after the
36). The plain sand stone block was found in many abhisheka of the deity which is not present in the
of the cases having a stone encasing from all the shrine now. The entrance of the structure is from
four sides, possibly to avoid shifting of the pillar the east in the form of a rectangular projection
placed over the having a twelve course of bricks interlocked with
the circular structure and having a 70x27x17 cm
PART N calcrete block fixed in it as the threshold. Two
sizes of bricks were used in the construction of the
520
shrine measuring 28x21xx5.5 cm and 22x18x5 cm.
block (Pls 37-38). Top parts of stone encasings had The rectangular projection
a projection in the middle. In the northern area at a
PART N
few places where the stone blocks were not found
sand stone slabs were found over the calcrete 521
blocks of the brick bat foundation of the pillar
bases. The decorated octagonal sand stone block on of entrance is 1.32 m in length and 32.5 cm
pillar base 32 having floral motif on the four projected towards east.‖
corners in trench F7 in the southern area is the (Emphasis supplied)
unique example at the site (Pl. 39) which definitely
belongs to the twelfth century A.D. as it is similar The report infers the existence of a pranala to drain
to those found in the Dharmachakrajina Vihara of out water, ―obviously after the
Kumaradevi at Sarnath (Pl. 40) which belongs to
abhisheka of the deity which is not present in the
the early twelfth century A.D.‖ (Emphasis
shrine now‖. The brick shrine
supplied)
which has been found as a result of the excavation
The ASI report contains a detailed analysis of as
is stated to be similar to the
many as 47 pillars bases.
findings of the excavation carried out by ASI at
The Circular shrine
Sravasti and at Rewa. On a
The ASI report contains an analysis of an east
comparative analysis, ASI has inferred that the
facing brick shrine which was
circular shrine can be dated to
exposed as a result of the excavation. The report
circa tenth century A.D.
notes:
Summary of results
―A partly damaged east facing brick shrine,
structure 5 (Pls 59-60, Fig 17,24 and 24A) was 455. A Summary of results is contained in Chapter
noticed after removal of baulk between trenches E8 X of the ASI report. The
and F8. It is a circular structure with a rectangular
projection in the east, the latter having been already results of the excavation are extracted below:
visible before the removal of the baulk. The
northern part of the circular part has retained its ―The Northern Black Polished Ware (NBPW)
lower eight courses above the foundation of brick- using people were the first to occupy the disputed
bats while the southern half is damaged by site at Ayodhya during the first millennium B.C.
constructional activity of the subsequent phase Although no structural activities were encountered
whose brick-bats have damaged the structure upto in the limited area probed, the material culture is
its working level. The structure was squarish from represented by terracotta figurines of female deities
the inner side and a 0.04 m wide and 0.53 m long showing archaic features, beads of terracotta and
chute or outlet was noticed on plan made through glass, wheels and fragments of votive tanks etc.
the northern wall upto the end where in the lower The ceramic industry has the collection NBPW, the
course a 5.0 cm thick brick cut in ‗V‘ shape was main diagnostic trait of the period besides the grey,
fixed which was found broken and which projects black slipped and red wares. A round signet with

304
legend in Asokan Brahmi is another important find Subsequently, during the early medieval period
of this level. On the basis of material equipment (eleventhtwelfth century A.D.) a huge structure
and 14 C dates this period may be assigned to circa nearly 50 ...north-south orientation was constructed
1000 B.C. to 300 B.C. which seems to have been short lived, as only four
of the fifty pillar bases exposed during the
The Sunga horizon (second-first century B.C.) excavation belong to this level with a brick crush
comes to the next in the order of the cultural floor. On the remains of the above structure was
occupation at the site. The typical terracotta mother constructed a massive structure with at least three
goddess, human and animal figurines, beads, structural phases and three successive floors
hairpin engraver etc. represent the cultural matrix attached with it. The architectural members of the
of the level. The pottery collection includes black earlier short lived massive structure with ...and
slipped, red and grey wares etc. The stone and other decorative motifs were reused in the
brick structure found from the level mark the construction of the monumental structure having a
beginning of the structural activity at the site. huge pillared hall (or two halls) which is different
from residential structures, providing sufficient
The Kushan period (first to third century A.D)
evidence of a construction of public usage which
followed the Sunga occupation. Terracotta human
remained under existence for a long time during the
and animal figurines,
period VII (Medieval-Sultanate level - twelfth to
PART N sixteenth century A.D.). It was over the top of this
construction during the early sixteenth century, the
522 disputed structure was constructed directly resting
over it. There is sufficient proof of existence of a
fragments of votive tanks, beads, antimony rod, massive and monumental structure having a
hair pin, bangle fragments and ceramic industry minimum dimension of 50x30 m in north-south and
comprising red ware represent the typical Kushan east-west directions respectively just below the
occupation at the site. Another important feature of disputed structure. In course of present excavations
this period is the creation of large sized structures nearly 50 pillar bases with brick bat foundation,
as witnessed by the massive structure running into below calcrete blocks topped by sandstone
twenty-two courses.
PART N
The advent of Guptas (fourth to sixth century A.D)
did not bring any qualitative change in building 523
activity although the period is known for its
classical artistic elements. However, this aspect is blocks were found. The pillar bases exposed during
represented by the typical terracotta figurines and a the present excavation in northern and southern
copper coin with the legend Sri Chandra (Gupta) areas also give an idea of length of the massive
and illustrative potsherds. wall of the earlier construction with which they are
associated and which might have been originally
During the Post-Gupta-Rajput period (seventh to around 60 m (of which the 50 m length is available
tenth century A.D.) too the site has witnessed at present). The centre of the central chamber of the
structural activity mainly constructed of burnt disputed structure falls just over the central point of
bricks. However, among the exposed structures, the length of the massive wall of the preceding
there stands a circular brick shrine which speaks of period which could not be excavated due to
its functional utility for the first time. To presence of Ram Lala at the spot in the make-shift
recapitulate quickly, exteriorly on plan, it is structure. This area is roughly 15x15m on the
circular whereas internally squarish with an raised platform. Towards east of this central point a
entrance from the east. Though the structure is circular depression with projection on the west cut
damaged, the northern wall still retains a provision into the large sized brick pavement signify the
pranala, i.e. waterchute which is a distinct feature place where some important object was placed.
of contemporary temples already known from the Terracotta lamps from the various trenches and
GangaYamuna plain. found in a group in the levels of Periods VII in
trench G2 are associated with the structural phase.
In the last phase of the period VII glazed ware

305
shreds make their appearance and continue in the In regard to the dating of the findings, the report
succeeding levels of the next periods where they indicates that the earlier human
are accompanied by glazed tiles which were
probably used in the original construction of the activities trace back to thirteenth century B.C.:
disputed structure. Similarly is the case of celadon
―…earliest remains may belong to the thirteenth
and porcelain shreds recovered in a very less
century B.C. which is confirmed by two more
quantity they come from the secondary context.
consistent C14 FROM THE NBPW level (Period
Animal bones have been recovered from various
I), viz. 910 = 100 B.C. and 880 = 100 B.C). These
levels of different periods, but skeletal remains
dates are from trench G7. Four more dates from the
noticed in the trenches in northern and southern
upper deposit though showing presence of NBPW
areas belong to the Period IX as the grave pits have
and associated pottery are determined by Radio-
been found cut into the deposition coeval with the
Carbon dating as 780=80 B.C., 710=90 B.C.,
late disputed structures and are sealed by the top
530=70 B.C. and 320=80 B.C. In the light of the
deposit. In the meanwhile to observe that the
above dates in association with the Northern Black
various structures exposed right from the Sunga to
Polished Ware (NBPW) which is general accepted
Gupta period do not speak either about their nature
to be between circa 600 B.C. to 300 B.C. it can be
or functional utility as no evidence has come to
pushed back to circa 1000 B.C. and even if a
approbate them. Another noteworthy feature is that
solitary date, three centuries earlier is not
it was only during and after Period IV (Gupta level)
associated with NBPW, the human activity at the
onwards upto Period IX (late and post Mughal
site dates back to circa thirteenth century B.C. on
level) that the regular habitational deposits
the basis of the scientific dating method providing
disappear in the concerned levels and the structural
the only archaeological evidence of such an early
phases are associated with either structural debris
date of the occupation of the site.‖
or filling material taken out from the adjoining area
to level the ground for construction purpose. As a Finally, the ASI concludes by indicating that:
result of which much of the earlier material in the
form of potter, terracottas and other objects of ―Now, viewing in totality and taking into account
preceding periods, particularly of Period 1 (NBPW the archaeological evidence of a massive structure
level) and Period III (Kushan level) are found in just below the disputed structure and evidence of
the deposits of later periods mixed along with their continuity in structural phases from the tenth
contemporary material. The area below the century onwards upto the construction of the
disputed site thus remained a place for public use disputed structure along with the yield of stone and
for a long time till the Period VIII (Mughal level) decorated bricks as well as mutilated sculpture of
when the disputed structure was built which was divine couple and carved architectural members
confined to a limited area and population settled including foliage patters, amalaka, kapotapali
around it as evidenced by the increase in doorjamb with semi-circular pilaster, broken
contemporary archaeological material including octagonal shaft of black schist pillar, lotus motif,
pottery. The same is further attested by the circular shrine having pranala (waterchute) in the
conspicuous north, fifty pillar bases in association of the huge
structure, are indicative of remains which are
PART N distinctive features found associated with the
temples of north India.‖ (Emphasis supplied)
524
PART N
absence of habitational structures such as
housecomplexes, soakage pits, soakage jars, ring 525
wells, drains, wells, hearths, kilns or furnaces etc
from Period IV (Gupta level) onwards and in 456. Numerous objections have been urged to the
particular from Period VI (Early Medieval-Rajput ASI report and will be
level) and Period VII (MedievalSultanate level).‖
(Emphasis supplied) considered. The report indicates that the post Gupta
period commencing from the

306
seventh to the tenth century A.D. witnessed 526
significant structural activity at the
Findings of the High Court on the ASI report
site. The report states that this activity has
uncovered the existence of a circular 457. During the course of his judgment, Justice S U
Khan did not place any
brick shrine with a circular exterior with an
entrance from the east. ASI has reliance on the ASI report. The learned judge
offered the following explanation:
concluded that the northern wall of the shrine
contains a pranala, i.e. a water ―Conclusions of A.S.I. Report 2003, already
quoted, are not of much help in this regard for two
chute, which it opined to be a distinctive feature of reasons. Firstly, the conclusion that there is
temples in the plains of the ‗evidence of continuity in structural phases from
the tenth century onward upto the construction of
Ganges – Yamuna. The report noted that the disputed structure‘ is directly in conflict with
excavation pertaining to the eleventh– the pleadings, gazetteers and history books.
Neither it has been pleaded by any party nor
twelfth century A.D. has revealed the existence of
mentioned in any gazetteer or most of the history
―a huge structure‖ with a
books that after construction of temples by
dimension of 50 meters by 30 meters. This activity Vikramaditya in first Century B.C. (or third or
during the early medieval fourth century A.D., according to some) and till the
construction of the mosque in question around
period of the eleventh and twelfth century A.D. 1528 A.D. any construction activity was carried out
reveals the existence of nearly at the site of the premises in dispute or around that.
Secondly, in case some temple had been
fifty pillar bases. The report notes that on the demolished for constructing the mosque then the
remains of the above structure, superstructure material of the temple would not
have gone inside the ground. It should have been
there was a massive structure constructed with at
either reused or removed. No learned counsel
least three structural phases
appearing for any of the Hindu parties has been
and three successive floors attached with it. The able to explain this position.‖
architectural features of the
The first reason which weighed with Justice S U
early structure including its decorative motifs were Khan was that it had not been
revised in the construction of a
pleaded by any of the parties that after the
―monumental structure‖ with a large pillared wall construction of a temple in the first
indicating evidence of a
century B.C. (or third or fourth centuries A.D.)
construction for public use. The report notes that until the construction of the
the construction of the disputed
mosque in the sixteenth century, any construction
structure during the early sixteenth century is found had been carried out at the
to have rested directly above
site. The case of the plaintiffs in Suit 5 is that the
the earlier structure and that the centre of the disputed structure of a mosque
central chamber of the disputed
was constructed after the demolition of a temple
structure is stated to fall over the central point of and that the mosque was
the length of the massive wall of
constructed at the site of the demolished temple.
the preceding period. The purpose of the excavation

PART N

307
which was ordered by the High Court was to enable 458. Justice Sudhir Agarwal observed during the
the court to have the benefit course of his judgment that

of a scientific investigation by ASI. It was on the certain undisputed facts emerge from the
basis of this excavation that the excavations. These were catalogued as

court would be apprised of the findings reached by follows:

ASI. To attribute to parties an
―(i) A lot of structural and
act of default in their pleadings is inappropriate for construction activities existed at the disputed site
the reason that the going back to the level of Shunga and Kushan
period. (i) The exact number of floors, pillar bases
PART N and walls (were) noted by ASI though objected but
the very existence of several floors, walls, and
527
pillar bases beneath the disputed stricture is not
archaeological evidence which came before the disputed. (ii) The structure below the disputed
court was as a result of the structure was sought to be explained as Kanati
mosque or Idgah. There is no suggestion that the
excavation which was carried out by the ASI. structure below the disputed building was of non-
Having ordered the excavation, it religious nature.

was necessary for the High Court during the course PART N
of the trial to evaluate those
528
findings. Justice S U Khan did not do so. The
second reason which has weighed (iii) Some of the constructions or artefacts are
sought to relate to Jains or Buddhist but here also it
with the learned judge proceeds on the basis of a is not the case that it was Islamic in nature or non-
conjecture. Justice S U Khan religious. (iv) Though allegations of lack of
independence in professional style etc. is sought to
held that it is not conceivable that Babur or be supported from the alleged misinterpretation or
Aurangzeb would have ensured prior wrong interpretation or omission or contradictions
and discrepancies in some part of the report but no
research to ascertain the exact birth-place of Lord
one of ASI team, individual or group has been
Ram and then have a temple
named or shown to have worked in a manner
constructed at the site. The purpose of the lacking integrity, independence etc. (except where
excavation was to enable the court to two nominees of Muslim side i.e. Dr. Jaya Menon
(PW 29) and Dr. Supriya Verma (PW 32) reported
determine as to whether the excavation at the creation of pillar bases in Trench G2 vide
disputed site suggested the complaints dated 21.5.2003 and 7.6.2003).‖

existence of prior structural activity over centuries Initially, the case of the Sunni Central Waqf Board
and, if so, whether any part of was that the building in dispute

it was of a religious nature. Justice S U Khan has was constructed at a place on which there was no
omitted to assess both the existence of a Hindu religious

finding of the ASI of a circular shrine and a structure and there was no evidence to suggest that
construction partaking of a publicly the structure was at the

used structure on the foundations of which the place which Hindus believe to be the birth-place of
disputed structure rested and its Lord Ram. Justice Agarwal

probative value in the present dispute. noted that when the excavation progressed there
was a marked change in the

308
approach of the plaintiffs in Suit 4 and a new case were found in the excavated shrine were of a non-
was sought to be set up that Islamic origin. The evidence of

the structure below the disputed structure as shown PWs 29, 31 and 32, insofar as is relevant is
in the excavation is of extracted below:

Islamic origin namely, either an ‗Idgah‘ or ‗a (A) Dr Jaya Menon (PW-29)

Kanati Masjid‘. Justice Agarwal noted
―The motif of Ghat (pot) is visible on this pillar. It
that this shift in stance of the Muslim parties is true that Ghat is also known to be as ―Kalash‖.
clearly excluded the possibility that Normally, this kind of ‗Ghat‘ on the pillar is not
found in mosque. It is correct to say that the
the structure which was found below the disputed figurines of elephant, tortoise and crocodile – all
structure was of an origin made of terracotta, were recovered during the
excavation. Such figurines were found in more than
which is not religious. The enquiry then narrowed
one trench. I know that the crocodile is the
down to whether the structure
seat/vehicle of Hindu holy river Ganga. I agree that
was Islamic or non-Islamic in nature. The learned tortoise is the vehicle of holy river Yamuna.‖
judge concluded that:
(B) Dr Ashok Dutta (PW 31)
―3905. It is clear from the report that floor 4
―As I have mentioned that the Muslim people do
which supports the foundation of pillar bases was a
not believe in the idol worship, hence there is no
floor of a Temple. It cannot be the floor of Idgah or
question of associating terracotta figurine with the
Kanati Mosque because pillars are always absent in
Muslim culture. So far I know and my knowledge
Idgah so that maximum persons could be
goes, the question of terracotta figurine to be
accommodated in minimum space for offering
associated with Muslim culture does not arise‖.
prayer.‖
―It is true that such animal figurines are not
PART N allowed to be kept in the mosque.‖ ―Makar Pranal
is one of the parts of the Hindu temple architecture.
529 I am not very sure whether Makar Pranal has any
association with mosque or not. I have not seen any
459. Justice Agarwal noted that the existence of a mosque having any Makar Pranal in it.‖
circular shrine with its
PART N
attendant architectural features likely indicated the
presence of a Shaivite shrine 530

and that it was not a Muslim tomb. He observed (C) Dr Supriya Verma (PW-32)
that while on the one hand, the
―I have heard the word ‗Kalash‘. Kalash is not
dimensions of the structure were too small for a found in mosque…‖ ―Wall No. 16, according to
tomb, a gargoyle would never me, was used as a wall prior to the construction of
the disputed structure. In this way, Wall 16 was
find presence in a tomb but was an integral feature wall of some other construction which was existing
of the sanctum of a Shiva prior to the constriction of the disputed structure.‖
―However, it is true that Wall No. 17 was
temple to drain out water poured on the
constructed earlier to Wall No. 16.‖ ―I know
Shivalingam. In that context, after
crocodile. It is also very important for the temples.
analysing the evidence, Justice Agarwal observed It is called ‗Makar Mukh‘. I have not seen Makar
that PWs 29, 31 and 32 who Mukh in any mosque…‖

were the witnesses of the plaintiffs in Suit 4 Justice Agarwal observed:

accepted that the features which

309
―3979. The report of the Archaeological Survey building collapsed on its own or due to natural
of India, which is a report of an expert in forces or for the reason attributable to some
excavation, contains all the details including details persons interested for its damage. Sufficient
of stratigraphy, artefacts, periodisation as well as indication has been given by ASI that the building
details of structures and walls. The pillar bases in dispute did not have its own foundation but it
mentioned in the report establish beyond all doubt was raised on the existing walls. If a building
the existence of a huge structure. In addition to would not have been existing before construction
above, existence of circular shrine, stone slabs in of the subsequent building, the builder might not
walls with Hindu motifs and more particularly sign have been able to use foundation of the erstwhile
of Makar Pranal in wall No. 5 (wall of disputed building without knowing its strength and capacity
structure), divine couple and other temple of bearing the load of new structure. The floor of
materials, etc., conclusively proves the existence of the disputed building was just over the floor of
a Hindu religious structure beneath the disputed earlier building. The existence of several pillar
structure. It is generally admitted by the witnesses bases all show earlier existence of a sufficiently
that the excavation was conducted as per settled bigger structure, if not bigger than the disputed
norms of archaeology in presence of parties, structure then not lesser than that also.‖
experts and observers and three dimensional
recording, photography, videography of each and After analysing the evidence, Justice Agarwal
every trench, structure, artifacts, were done by the observed:
ASI during excavation in presence of all
―4055. The ultimate inference, which can
concerned. Day-to-day register, supervisor's diary
reasonably be drawn by this Court from the entire
and antiquity register were being regularly
discussion and material noticed above, is: (i) The
maintained. 3980. There are some more
disputed structure was not raised on a virgin,
objections which we find not much of worth for the
vacant, unoccupied, open land. (ii) There existed a
reason that the experts of Muslim parties
structure, if not much bigger then at least
ultimately, realizing that structure existed
comparable or bigger than the disputed structure, at
underneath the disputed building made out a new
the site in dispute. (iii) The builder of the disputed
case in their statement. However, a new stand
structure knew the details of the erstwhile structure,
which is not the case of the plaintiff, not pleaded is
its strength, capacity, the size of the walls etc. and
not permissible.‖
therefore did not hesitate in using the walls etc.
One of the objections before the High Court was without any further improvement. (iv) The
that the ASI report did not erstwhile structure was religious in nature and that
too non-Islamic one. (v) The material like stone,
specifically answer whether there was any pre- pillars, bricks etc. of the erstwhile structure was
existing structure which was used in raising the disputed structure. (vi) The
artefacts recovered during excavation are mostly
demolished for the construction of a mosque and such as are non-Islamic i.e pertaining to Hindu
whether the pre-existing religious places, even if we accept that some of the
items are such which may be used in other religions
structure was a temple. Answering this objection,
also. Simultaneously no artefacts etc., which can be
the High Court held:
used only in Islamic religious place, has been
PART N found.‖

531 Motifs on the Kasauti stone pillars

―3990. ASI, in our view, has rightly refrained 460. Evidence was produced before the High Court
from recording a categorical finding whether there of the motifs on the pillars in
was any demolition or not for the reason when a
the disputed building. Three sets of albums
building is constructed over another and that too
containing photographs taken by the
hundreds of years back, it may sometimes be
difficult to ascertain as to in what circumstances PART N
building was raised and whether the earlier

310
532 well, and the idols are also visible…The
photograph no. 65 is of the main gate. However, its
State Archaeological Department pursuant to an pillar contained idols, which are result of change.
order dated 10 January 1990 The photograph no. 66 is also of the eastern side
but it has idols, which are result of change.‖ ―The
were produced. Dr Rakesh Tewari (OPW-14) who
photograph no. 72 does contain black pillars but it
was the Director of the State
has idols in upper and lower part… Similar is the
Archaeological Department verified the position of the two pillars of photograph no. 71.
photographs. The first album contained Same is with the pillar shown in photograph on. 73.
It also contains idols. The photograph
204 coloured photographs and was marked as paper
no. 200 C1/1 -204. The PART N

second album contained 111 black and white 533

photographs and was marked as
no. 74 is also similar, which has idols over pillars.
paper no. 201C/1-111. The High Court annexed the This pillar has been shown completely from all
photographs as Appendices sides, which had been fixed over there.‖ ―The
photograph no. 101 is also of that place, but many
5(A) to 5(DD) of its judgment. The photographs changes have been made therein. The idols are also
contain depictions of the black existing and the pitchers (Kalash) are also existing.‖
―It is true that all the photographs contained in
Kasauti stone pillars. Several of the witnesses on this album, had been taken in the presence of my
behalf of the plaintiff in Suit 4 counsel. All these photographs are of the disputed
land and property.‖
deposed during the course of their evidence in
regard to these photographs. There were witnesses who deposed on behalf of the
contesting Hindu parties.
Relevant extracts from the deposition of Farooq
Ahmad (PW-3) have been re They also spoke about the idols depicted in the
photographs of the pillars. These
produced in the judgment of Justice Sudhir
Agarwal. Extracts from the testimony idols include depictions of Gods and Goddesses
worshipped by Hindus such as
are quoted below:
Hanuman, Narsimha, Ganesh and Durga. The
Farooq Ahmad (PW-3):
witnesses have also deposed
―Idols are visible in photograph no. 57, which
about the images of a peacock, garuda and lotus.
were not present at that time. This photograph is
The witnesses who deposed in
also of the disputed property but it is possible that
it may have been changed because at that time this regard on behalf of the Hindu parties were
there were no idols over the pillars. An idol is DW-3/5-1-2, 17/1, B/1-1, 17/1,
visible in the upper part of photograph no. 58 as
well. There was a black pillar at the gate, which did 20/1 and 12/1.
not have any idol and it is possible that it may have
been changed subsequently...It is only after looking Coupled with the photographs is the fact that
at the photograph that I am stating that the pillars during the course of the excavation,
may have been changed. These pillars have idols
62 human and 131 animal figurines were found by
on their top and it is only after looking at them that
the ASI. Justice Sudhir
I am stating that these pillars have been changed.‖
―In photograph no. 62 there is a pillar like Agarwal noted that it was not in dispute that no
structure near the grill, which has idols. This pillar Islamic religious artefacts were
is at the northern gate of the disputed property… It
is visible in white color in photograph no. 64 as

311
found during the excavation, while artefacts on drawing inferences in the context of what is
pertaining to a Hindu religious origin found in the course of excavation

were found in abundance. Among them, as the and does not yield verifiable conclusions.
learned Judge noted, were motifs
Ms Arora urged the following additional objections
of flowers (plates nos 51 and 62); the hood of a with respect to the ASI report:
cobra (plate no. 129) and those
(i) No witness was called to prove the ASI report;
pertaining to other Gods and Goddesses in human
shape (plate nos 104-112, (ii) No finding has been recorded by the ASI on
whether there was a pre
114-116, 118-123 and 125-126). The witnesses
who supported the findings and existing temple which was demolished for the
construction of a mosque;
report of the ASI were Dr R Nagaswami (OPW-
17), Arun Kumar (OPW – 18) and (iii) The Summary of results recorded in the
conclusion of the report is not
Rakesh Dutt Trivedi (OPW-19).
attributed to any specific author unlike the
PART N individual chapters; and

534 PART N

Objections to the ASI report 535

461. Ms Meenakshi Arora, learned Senior Counsel (iv) The report does not indicate whether any
has prefaced her meetings were held between the

submissions by formulating the following members of the team responsible for undertaking
objections to the ASI report: the excavation activity. If

(i) The ASI report suffers from glaring errors and they did, the notes of the team meeting should have
internal inconsistencies; been furnished.

(ii) The ASI report is only an opinion of an Subsequently, during the course of his
archaeologist in view of Section 45 submissions on the scope of the

of the Evidence Act 1872; and challenge to the report, Dr Rajeev Dhavan, learned
Senior Counsel appearing for
(iii) Archaeology is an inferential science which
renders the report a weak the plaintiffs in Suit 4 submitted that whether the
Summary of results has been
account of evidence.
signed is a futile line of enquiry because it only
Elaborating the third submission, Ms Arora goes to the authenticity and
submitted that archaeology is a social
authorship of the report. Dr Dhavan fairly
science as distinct from a natural science. submitted that the authorship of the ASI
Archaeology, in her submission, is not
report cannot be questioned since there is no
precise or exact as distinguished from the natural dispute that it is attributed to the
sciences which are based on
ASI and was submitted in pursuance of the
verifiable hypotheses. Archaeology, the learned directions of the High Court. In view
Senior Counsel urged, is based

312
of the submission, the doubt raised earlier by Ms collect samples of soil and mortar (for carbon
Arora on the authorship of the dating), pottery (for

Summary of results is set at rest. The report has thermoluminescence), grains and pollen (for paleo-
been co-authored by B R Mani botanical studies) and

and Hari Manjhi. The report emanates from the bones (for study of faunal remains), this was not
ASI to whom the task was done;

entrusted by the High Court. There being no (v) The High Court had issued directions to the ASI
dispute about the authorship, origin to maintain a register for

or authenticity of the report, we find no substance accurate recording of recovery of artefacts from
in the objection that was raised each layer; and

by Ms Arora on that count. (vi) ASI prepared and submitted its report in 15
days in a hurried manner.
Merits of the objections
463. ASI had to conduct a complex exercise. Its
462. The objections which have been addressed excavation was time bound.
against the ASI report by Ms
The excavating team had to work its way around a
Arora, learned Senior Counsel have been make-shift temple without
elaborated in Volume A-91 of the
affecting the worship of the deity. The trenches had
written submissions titled as ―Stratigraphy / to be arranged with care. The
Periodisation, Pillar Bases, Walls,
difficulties which ASI encountered were numerous.
Circular Shrine, Divine Couple & Other Artefacts, Its team excavated in the
Glazed Ware & Glazed
glare of publicity, in the presence of parties or their
Tiles; Animal Bones‖. The preliminary submissions representatives. The report
are:
notes the unusual circumstances which it faced in
PART N the course of the excavation:

536 ―a. In planning the excavation, it was decided to

adopt the latest technique of layout of trenches
(i) ASI did not properly mark the soil layers on
where limited spaces are available and therefore in
excavation;
place of general practice of layout of 10 x 10m.
(ii) ASI failed to maintain accurate records of the squares divided four quadrants of 4.25x4.25m b.
recovery of artefacts from On the directions of the Hon‘ble High Court,
Archaeological Survey of India has excavated
specific layers and lost the context; ninety trenches in a limited time of five months
soon after which the
(iii) Though, the bones found in excavation could
have been subjected to PART N

carbon dating and Paleo-Botanical studies to arrive 537

at better estimates of
excavation report is required to be submitted within
chronology, only charcoal samples were sent for fifteen days. This is an unprecedented event in the
carbon dating; history of one hundred and forty two years of the
existence of the Survey c. …Thus the time
(iv) Though, ASI had assured the High Court in its available for their documentation, study
interim report that it would photography, drawing and chemical preservations

313
was limited to just a few hours only and that too of stratigraphy, artifacts, periodisation as well as
not in the case of material recovered from the details of structures and walls.‖
trenches towards closing of the work for the day…
Work was often affected and delayed due to 464. In the course of analysing the ASI report, it is
formalities involved in security checks and such important to bear in mind the
other administrative requirements… d. Working
criticism levelled on the methodology adopted by
condition worsened at the onslaught of the
and the findings recorded by
monsoon from June onwards when the entire site
was covered with multi-colored waterproof streets ASI. Taking them into consideration will be an
creating heat and humidity besides total darkness in important evaluative technique for
a number of deep trenches. Monkeys started
damaging the sheets as a result of which several this Court to deduce whether the objections, if
layers of the sheets were spread over bamboo and found to be valid, are of such a
wooden poles. They created further darkness…
Much difficulty was felt for the stratigraphical nature as would detract wholly from the utility of
observation particularly for determining layers. the report. Alternatively, this
These factors slowed the process of ongoing work.‖
Court may have to consider a more nuanced
Ms Arora urges that these difficulties led to errors. perspective under which the
The manner in which ASI
deficiencies shown to exist in the report can lead to
carried out ―stratigraphy-periodisation‖ was a realistic assessment of the
questioned before the High Court.
conclusions based on probability, relevance and
Justice Sudhir Agarwal while rejecting the inconsistency. The judgment
objections observed:
must deal with the basic question whether the
―3846. From the statement of the six expert findings of ASI have relevance to
witnesses produced on behalf of plaintiff (Suit-4),
the determination of title.
we find that all of them are not unanimous in
saying that the entire stratigraphy or periodization 465. Ms Arora has highlighted the oral testimony
made by ASI is bad or incorrect or suffers with of R C Thakran (PW- 30), who
such material illegality or irregularity that the same
deserves to be rejected, which… ultimately may assailed the ASI report. PW – 30 noted that periods
result in rejection of the entire report itself. Their VI to VII of Chapter III titled
statements are also contradictory, vague, confused
and based on…conjectures. 3863… On the ―Stratigraphy and Chronology‖ were subsequently
contrary, most of them admit that determination of altered in the ‗Summary of
stratigraphy/chronology can be done in one or more
results‘. Initially at pages 38 to 41 of the report, the
method which are well recognized and they are…
nomenclature of periods V, VI
(1) dynasty wise, (2) century wise and (3) layer
wise, and the ASI has followed all the three and VII is as follows:
systems.‖
―Period V : Post-Gupta-Rajput, 7th to 10th
PART N Century Period VI: Medieval – Sultanate, 11th-
12th Century Period VII: Medieval, 12th to 16th
538
Century.‖
The High Court observed:
PART N
―3979. The report of the Archaeological Survey
539
of India, which is a report of an expert in
excavation, contains all the details including details PW-30, however draws attention to the fact that in
the Summary of results the

314
above nomenclature is revised to read as follows : PART N

―Period V : Post-Gupta-Rajput, 7th-10th century 540

Period VI: Early medieval, 11th-12th century
Period VII: Medieval-Sultanate, 12th-16th clarify the situation before any conclusion is drawn
century.‖ by us.‖ (Emphasis
supplied)
The above inconsistency which has been
highlighted carefully by Ms Arora must The highlighted excerpts from the answer of the
witness emphasise the
be borne in mind.
importance of a clarification being sought from the
According to PW-30, the transfer of the Medieval - ASI on the classification which
Sultanate period from period
it adopted. This precisely is one of the difficulties
VI to VII has ―the advantage‖ of ignoring Islamic which the objectors must
period materials like glazed ware
confront. If a clarification was necessary (as the
or lime-mortar by removing them arbitrarily from witness acknowledges), it was
period VI levels to those of
but appropriate that under Order XXVI Rule 10(2),
period VII so that their actual presence in those a request should have been
levels does not pose a challenge
addressed to the court for the examination of an
to ASI in placing the construction of an alleged appropriate witness from ASI.
―massive‖ or ―huge‖ temple in
This was not done.
period VI.
Objections as to Pillar bases
On the aspect of ‗periodisation-stratification‘,
Jayanti Prasad Srivastav (DW-20/5) 466. The ASI report states that:

who was formerly a Superintending Archaeologist ―From the excavation it could be inferred that
with ASI stated: there were seventeen rows of pillars from north to
south, each row having five pillar bases.‖ On the
―…However I agree with the opinion of the ASI, other hand it admits that: ―Out of excavated fifty
which is mentioned in the chart prepared by them pillar bases only twelve were completely exposed,
at page 37-A, where they have assigned floor 4 and thirty five were partially exposed and three could
5 to the early Medieval Sultanate period. On page be traced in sections only. A few pillar bases were
37-A in the chart the ASI has mentioned early noticed during earlier excavation after which a
Medieval Sultanate period whereas at page 40 they controversy took place about their association with
have mentioned Medieval period. To my mind it different layers and their load bearing capacity.‖
appears that there is difference between the two,
but I cannot clarify the same. Q. Is it correct to say Ms Arora submitted that the so-called pillar bases
that the term ―early Medieval Sultanate‖ period could not either have formed a
indicated by light green colour in the chart at page
part of or supported the alleged massive structure
37-A is no other period than the period described as
/temple as claimed by the ASI
period VI (Medieval Sultanate level) of 11th –
12th Century on page 40 of ASI report, Vol. I A. for the following reasons:
Since the term ―early Medieval‖ has got a definite
meaning in the chronological sense, I cannot equate (i) During the excavation, the ASI identified
it with Medieval-Sultanate level lightly, hence the different layers belonging to
excavators, who got this chart prepared are
required to different periods. Within the different layers, it
identified the presence of

315
four different floors which are marked by the The pillar bases are at different distances from the
existence or presence of thick western wall.

PART N Further, the shapes and sizes of these purported

pillar bases vary from
541
elliptical to circular to square to rectangular to
clearly demarcated floors of lime-surkhi or surkhi. irregular, and have differing
Admittedly, the floors are
dimensions. This not only shows that they were
at different levels, floor 1 being the level of the built in different time
demolished mosque and
periods but also that they could not have comprised
floors 2, 3 and 4 being below it at different levels the supporting
as is illustrated in the
framework of any massive structure or temple.
report. Given that the alleged pillar bases have been Furthermore, none of these
found in different
pillar bases have been found in association with
floors or cutting through different floors, it is any pillar; and
evident that these pillar bases
PART N
have been constructed at different time periods.
Hence, the so-called pillar 542

bases could not have contemporaneously formed (iv) Given the nature of the so-called pillar bases as
part of a single structure, exposed by ASI, which

let alone a purportedly massive structure; were mostly made of brick-bats, they could, at best,
have supported only
(ii) There are discrepancies and variations in the
number of alleged pillar wooden pillars on them (as admitted by DW-20/5,
an expert witness who
bases found on different floors in different parts of
the ASI Report. The testified in support of the ASI Report). Such
wooden pillars could not have
isometric view in Figure 23A contains a number of
imagined or conjectured borne the heavy load of a massive structure.

pillar bases which have not even been exposed. The above objections are sought to be established
Therefore, the claim of a on the basis of evidence

massive structure is an unfounded hypothesis as the under the following heads of the submissions of
exact number of pillar counsel:

bases is not known; (i) Pillar bases do not belong to the same floor

(iii) In any case, the so-called pillar bases are not in Jayanti Prasad Srivastav (DW 20/5); Arun Kumar
alignment as revealed Sharma (OPW 18); Ashok

from actual measurements and distances (admitted Datta (PW 31); and Dr Shereen Ratnagar (PW 27)
by DW-20/5 and stated that all the pillar bases

OPW-17, expert witnesses who deposed in support do not belong to the same floor. OPW 18 stated
of the ASI Report). that 46 pillars belong to floor 3 of

316
period VII (twelfth century A.D) and 4 pillars so-called bases are not pillar bases but are actually
belong to floor 4 (eleventh century brick-bat deposits. PW 27,

A.D.). PW 31 stated that some of the pillar bases PW 30 and PW 32 also deposed that the pillar
found in the northern part of the bases and the pillars were not of a

mound belonged to a different elevation and load bearing character.

structural activity. PW 27 stated that
Objections as to walls
the pillar bases do not belong to the stratum.
467. The following objections were addressed to
(ii) Pillars and pillars bases are conjectural the ASI report before the High

R Nagaswami (OPW 17), Jayanti Prasad Srivastava Court in regard to the presence of the excavated
(DW 20/5) and Ashok Datta walls:

(PW 31) claimed during the course of their ―A medieval temple in classical style would have
examination that the finding that there had a central portion with thick internal walls to
support a high superstructure.
were 17 rows of pillar bases with five in each row
is an inference since all the 85 PART N

pillar bases have not been excavated. 544

PART N The key plan of structures, in Trench H1, shows

two lengths of a wall or two narrow walls, each less
543 than a meter long, with a gap of about 70 cm. This
depiction in the plan and the one line is all the
(iii) The pillar bases are not in alignment
information given about this ‗entrance‘.‖
R C Thakran (PW 30), Ashok Datta (PW 31) and
Dealing with the objections, the High Court
Dr Supriya Verma (PW 32)
returned the following findings:
stated that the pillar bases were not in exact
―3926. During excavations, in all 28 walls were
alignment as would be expected in a
traced as shown in Fig. 3A out of which wall no. 1
pillared hall. to 15 are either contemporary to the disputed
structure or belong to disputed structure. Walls no.
(iv) Pillar bases are of different sizes and shapes 16 to 28 are earlier to the disputed structure and
were found underneath the disputed structure... ...
Jayanti Prasad Srivastava (DW 20/5) stated that 3928. The statements of Experts (Archaeologists)
pillar base No. 42 (43X120X28 of plaintiffs (Suit-4) in respect to walls and floors
have already been referred in brief saying that there
cm.) was the smallest in size while the largest is
is no substantial objection except that the opinion
pillar base No. 35 (170X160X38
ought to be this or that, but that is also with the
cm). caution that it can be dealt with in this way or that
both and not in a certain way. In other words on
(v) Pillars /Pillar bases were not load bearing this aspect witnesses are shaky and uncertain. We,
therefore find no substantial reason to doubt the
R Nagaswami (OPW 17) stated that the pillars report of ASI in this respect.‖
which were used in the pillar
Ms Arora has raised the following objections with
bases were probably of wood and not stone – such respect to the walls:
a pillar could bear a load of a
(i) The inner walls (walls 18A, 18B, 18C and 18D)
tiled roof but not of a huge superstructure. Ashok could not have been
Datta (PW 31) stated that the

317
load bearing because they are too narrow, only two parties though a reluctant attempt has been made
to three courses for diverting the identity by suggesting that it may
be a "Buddhist Shrine" or a tomb of erstwhile
high and built from brick-bats. Wall 16 is 1.77m Islamic religious structure. PW-30 has
wide whereas walls categorically admitted it on page 15 and has said
that his statement in para 14 of the affidavit was
18A, B, C and D are relatively thin;
not after looking to the shrine at the spot but on the
(ii) Thicker western walls are a feature of mosque basis of its photo only. 3935. During excavation at
construction; the disputed site between trenches E-8 & F-8 a
circular structure of burnt bricks facing east was
(iii) Wall 16 could only have been the foundation recovered, commonly termed as "circular shrine",
of the Babri mosque; and detailed at page 70 to 72 of report, volume 1, and
shown in figure 17, 24, 24A, and plates 59, 60 &
(iv) According to Jayanti Prasad Srivastava (DW 62 (volume 2) of the report. The bricks used here
20/5), wall 16 was built are of two sizes: 28x21x5.5 cm and 22x18x5 cm.
The bonding material was mud mortar. On its
around 1130 A.D. when a pillared hall was erected
eastern side, there is a rectangular opening, 1.32 m
in front of the
in length and 32.5 cm in width, which was the
shrines. After construction of wall 17, the entrance of the structure. A calcrete block,
structures standing below measuring 70x27x17 cm, has also been found here,
fixed, obviously, as the door-sill. This was an
floor 3, towards east of wall 17, got protected from independent miniature shrine. The architectural
flood and to further features suggest that, that it was a Shiva shrine.
3939. It is unthinkable that inspite of these clear
strengthen it, wall 16 was constructed. features of Shiva shrine, the objectors are
identifying the same as a Muslim tomb. 3940.
PART N
Secondly, it is too small a structure for a tomb,
545 from inside it is only 4.4 ft. square. Neither could it
accommodate a grave in its interior, nor a Qiblah-
Objections as to circular shrine Mihrab on its western wall ; Qiblah was an integral
and essential part of tomb-structure
468. The High Court noted the following
objections in regard to ASI‘s findings PART N

about the existence of a circular shrine: 546

―1.Erroneous to compare structure with certain during the Sultanate period (1192-1526 A.D.) as is
temple structures and not with circular walls & illustrated by numerous examples all over northern
buildings 2. No object of Hindu worship found on India. 3941. Thirdly, there is no trace of an arch
this layer 3. Surviving wall as per ASI‘s drawings required for constructing dome over the tomb.
makes only a quarter of circle – such shapes are There are no hook-shafts to bear and no structural
fairly popular in walls of Muslim construction 4. trace to suggest any lateral thrust of the mihrab. It
Nothing found in the structure in the way of image may be noted that the sub-structure of the mihrab is
or sacred piece that can be called a ―shrine‖ 5. built massively on the edges of the four corners, to
Shrine could have been a stupa belonging to the 6th counter the lateral thrust. One wonders, if it was a
or 7th century AD.‖ tomb without any arch or dome, and without even a
grave? 3942. Thus, on the one hand the dimension
While rejecting these objections, the High Court of this structure are too small for a tomb and on the
recorded the following findings: other the gargoyle was never in tombs while it was
an integral feature of the sanctum of Shiva temples
―3931. 'Circular Shrine', more virtually its
to drain out water poured on the Sivlinga. 3943.
existence, that was found by ASI has been admitted
Shrine is a holy place where worship is performed.
by most of the Experts (Archaeologist) of Muslim
It is a structure where holiness is enshrined. Denial

318
for the sake of denial should not be allowed. "No fragments only 40 came from stratified contexts.
evidence to make this structure a shrine" and "a Out of these 40, none were specific to a temple, the
sheer figment of imagination and a conjecture 8 fragments separately mentioned (doorjamb,
without any evidentiary basis", such comments amlaka, divine couple, srivatsa motif, lotus
grossly lack technical acumen and clearly show the medallion etc.) are of no significance. For example
dearth of logical thinking. These themselves are Srivatsa design is associated with Jainism, lotus
mere arguments lacking "evidentiary basis". These design could be Buddhist or Muslim.‖
and many like arguments show the 'ostrich attitude'
of the plaintiff. 3952. In the overall view we find The High Court rejected the above objections.
no reason to doubt the findings of ASI on this Justice Sudhir Agarwal held:
aspect also and the objections otherwise are
―3958. The identification and appreciation of the
accordingly rejected.‖
excavated material like human or animal figurines
Ms Arora, learned Senior Counsel has raised the etc. is a matter of experts. None of these eight
following objections with experts (Archaeologists of Muslim parties) claimed
to be the experts in this… branch in Archaeology.
respect to the findings in the report on the circular Even otherwise their stand in respect to these finds
shrine: is varying. One witness says that these finds were
not at all recovered from the layers they are
(i) The structure pertains to seventh to tenth claimed while others say otherwise. We have seen
century A.D. (post Gupta photographs of many of such artifacts and finds
and in generality there is no such inherent lacuna or
Rajput period) and hence, would have nothing to
perversity in the observations of ASI or other
do with the alleged
identification which may warrant any… comment
Ram Janmasthan temple which is of twelfth from this Court or may vitiate their report. It is not
century A.D.; in dispute that no Islamic religious artefacts have
been found during excavation while the artifacts
(ii) The excavation report shows pillar bases lying relating to Hindu religious nature were in
right above the shrine abundance. For some of the items, it is claimed that
it can also be used by non-Hindu people but that
which refutes the claim that the circular shrine would not be sufficient to doubt the opinion of
belonged to the same ASI. Plate No.50 (Kapotpalli), Plates No.51 and 62
(floral motifs shown in walls 16 and 17), (Sravats)
time period as that of the twelfth century Hindu
Plate No.88, Cobra hood (Nag Devta) Plate No.129
structure; and
and various other Gods and Goddesses in human
(iii) There is no evidence of any water residue. shape (Plate Nos. 104, 105, 106, 107, 108, 109,
110, 111, 112, 114, 115, 116, 118, 119, 120, 121,
PART N 122, 123, 125, 126) to our mind were quite clear
and admits no doubt. Three witnesses namely Sri
547 Arun Kumar (OPW-18), Dr. R. Nagaswami (OPW
17) and Sri Rakesh Dutt Trivedi (OPW19) were
Divine couple and other artefacts
produced who supported the findings and report of
469. The following objections were placed before ASI. They are retired officers, holding senior
the High Court: position in ASI. Their statements are

―Divine Couple: 1. Piece so damaged that it is PART N

undecipherable. 2. No reason for calling it
548
―divine‖ given. Piece found in trench K3-K4 and
the recorded layer is ―debris‖. Thus the piece does sufficiently lengthy and extremely detailed. Since
not come from a stratified context. 3. Octagonal they have supported ASI report, we have not
Shaft: Comes from surface debris above topmost mentioned their statements in detail for the reason
floor (Floor 1) in Trench F3 (Pl. 140) – is of no that we intended to test the objections raised
relevance. 4. Others: Out of 383 architectural against ASI report in the light of what the witnesses

319
of plaintiff (Suit 4) have deposed and only when (i) Glazed ware was placed in the last phase of
we would have some doubt, we would refer to and period VII since otherwise
compare the statement that of OPW 17 to 19. In
totality we find no substance in the objection with it would militate against a temple being made in
respect to the figurines etc. and the same are that period;
accordingly rejected.‖
(ii) Glazed ware is an indicator of Muslim
Besides the above objections, Ms Arora, learned habitation and is not found in
Senior Counsel has raised the
medieval Hindu temples; and
following objections:
(iii) Two pieces of glazed wares were found in VI –
(i) Different teams of the ASI which authored indicating that the layers
various chapters of the
were wrongfully assigned.
report arrived at inconsistent findings on the
Objections as to animal bones
periods attributed to the
471. Ms Meenakshi Arora, learned Senior Counsel
artefacts;
has raised the following
(ii) The so-called sculpture of the ‗divine couple‘
objections with respect to the animal bones:
is completely mutilated;
(i) No study was conducted of the bones found
(iii) There is no basis for the use of the expression
during the excavation at
―divine‖ as even the
every level of the site;
‗alingan mudra‘ does not appear clear; and
(ii) The ASI report does not contain a separate
(iv) The other artefacts such as the lotus design are
chapter regarding the study
not necessarily
of bones and there is only a casual reference in the
associated with the Hindu religious structures.
Summary of
Objections as to glazed ware and glazed tiles
results, without any understanding of the contextual
470. A total of 647 fragments of pottery which relationship of the
were recovered were assigned to
bones recovered with the structural remains; and
nine periods as reflected below:
(iii) Recovery of bone fragments with cut marks is
―Period I : 99 Period II : 73 Period III : 105 a sign of animals being
Period IV : 74 Period V : 85 Period VI : 63 Periods
utilised for food which would rule out the
VII, VIII & IX : 148 TOTAL : 647.‖
possibility of a temple.
PART N
PART N
549
550
Of the 647 fragments, 148 fragments have been
The above inconsistency which has been
assigned to periods VI, VIII and
highlighted carefully by Ms Arora must
IX.
be borne in mind.
Ms Arora submitted that the principal objections
The Code of Civil Procedure: Section 75 and Order
were that:
XXVI

320
472. Before dealing with the objections raised by 551
Ms Arora both on the
The remaining provisions deal with commissions
preliminary aspects outlined to above and on the for the examination of accounts
merits on report (which will be
and for making partitions and contain general
set out later), the Court must form a perspective of provisions, including commissions
the nature and ambit of the
at the instance of foreign tribunals.
investigation entrusted to the ASI by the High
Court. 474. For the present purpose, the court has to deal
with Rules 9, 10, 10A and
473. Section 75277 of the CPC empowers the court
to issue commissions 10B. Rule 9 empowers the court to issue a
commission for the purpose of a local
―subject to such conditions and limitations as may
be prescribed‖. The court may investigation which it considers to be requisite or
proper for the purpose of
issue a commission, among other things to hold a
scientific, technical or expert elucidating any matter in dispute. After a local
inspection, Rule 10 empowers the
investigation. This specific provision was
incorporated by Amending Act 104 of commissioner, to submit a signed report to the
Court together with the evidence.
1976 with effect from 1 February 1977.
Rule 10 provides as follows:
Order XXVI deals with Commissions. Rules 1 to 8
cover commissions for the ―10 . Procedure of Commissioner— (1) The
Commissioner, after such local inspection as he
examination of witnesses. Rules 9 and 10 deal with deems necessary and after reducing to writing the
commissions for local evidence taken by him, shall return such evidence,
together with his report in writing signed by him, to
investigation, while commissions for scientific the Court. (2) Report and deposition to be
investigation and for the purpose of evidence in suit. The report of the Commissioner
and the evidence taken by him (but not the
ministerial acts and the sale of property are covered
evidence without the report) shall be evidence in
by Rules 10A, 10B and 10C.
the suit and shall form part of the record; but the
Court or, with the permission of the Court, any of
the parties to suit may examine the Commissioner
277 Section 75. Power of court to issue personally in open Court touching any part of the
commissions.- Subject to such conditions and matters referred to him or mentioned in his report,
limitations as may be prescribed, the Court may or as to his report, or as to the manner in which he
issue a commission- (a) to examine has made the investigation. (3) Where the Court is
any person; (b) to make a local for any reason dissatisfied with the proceedings of
investigation; (c) to examine or adjust the Commissioner, it may direct such further
accounts; or (d) to make a partition inquiry to be made as it shall think fit.‖
(e) to hold a scientific, technical, or expert
Rule 10A makes the following provisions in regard
investigation; (f) to conduct sale of property
to the appointment of a
which is subject to speedy and natural decay and
which is in the custody of the Court commission for the purposes of scientific
pending the determination of the suit; investigation:
(g) to perform any ministerial act.
―10A . Commission for scientific investigation—
PART N (1) Where any question arising in a suit involves

321
any scientific investigation which cannot, in the the behest of a party to the suit. The subject matter
opinion of the Court, be conveniently conducted on which the Commissioner
before the Court, the Court may, if it thinks it
necessary or expedient in the interests of justice so can be examined is also described in sub-rule 2 of
to do, issue a commission to such person as it Rule 10. The Commissioner
thinks fit,
may be examined on:
PART N
(i) Any of the matters referred;
552
(ii) Any of the matters mentioned in the report;
directing him to inquire into such question and
(iii) As to the report; or
report thereon to the Court. (2) The provisions of
rule 10 of this Order shall, as far as may be, apply PART N
in relation to a Commissioner appointed under this
rule as they apply in relation to a Commissioner 553
appointed under rule 9.‖
(iv) As to the manner in which the investigation has
Rule 10B deals with the appointment of a been made.
commission for the performance of a
This covers both matters of procedure followed in
ministerial act which cannot be conveniently conducting the investigation
performed before the court.
and the substantive aspects of the report.
475. While directing the ASI to carry out a
scientific investigation, the High Court 476. Dr Bhuvan Vikram Singh

was exercising its powers under Section 75 and During the course of the proceedings before the
Rule 10A of Order XXVI. To High Court, the plaintiffs in Suit 5

such an investigation, sub-rule 2 of Rule 10A filed an application requesting the examination of
stipulates that the provisions of Dr Bhuvan Vikram Singh, who

Rule 10 shall apply, as far as may be, as they apply was part of the excavation team. The High Court
in relation to a Commissioner summoned the witness. Dr

appointed under Rule 9. Rule 10(2) stipulates that Bhuvan Vikram Singh filed an application278
the report and the evidence requesting that he may be

taken by the commissioner ―shall be evidence in summoned as a court‘s witness as he was part of
the suit‖. There is a mandate the court appointed excavation

of the statute that the report and the evidence be team and was not willing to depose as a witness of
treated as evidence in the suit any party to the suit. The

and that it ―shall form part of the record‖. counsel for the plaintiffs in Suit 5 did not oppose
However, either the court on its own the application and made a

accord or any of the parties to the suit (with the statement that he did not wish to examine Dr
permission of the court) may Bhuvan Vikram Singh as a witness

examine the Commissioner personally. This is an in Suit 5. However, the counsel made a request that
enabling provision under which Dr Bhuvan Vikram Singh

the Commissioner can be examined either by the should be treated and examined as a court‘s
court on its own accord or at witness. By an order dated 4

322
December 2006, the High Court discharged the Summary of results. It appears that allegations of
witness without recording his bias and mala fides were also

deposition, while observing that the court itself had urged before the High Court; however, these were
the discretion to call any not pressed during the course

witness and be examined as a court‘s witness and of the hearing by Ms Arora, learned Senior
such a discretion could not be Counsel, before this Court.

fastened upon the court by an application filed by 478. There is no dispute about the factual position
any party. that none of the parties

477. Justice Sudhir Agarwal in the course of his sought to examine the Commissioner in terms of
judgment noted that parties had the provisions contained in Rule

raised objections to the report, which were to be 10(2) of Order XXVI which, as seen above, are
decided by the court. But then, it applicable by virtue of Rule

was found that the nature of the objections was 10A(2) to a Commission constituted for a scientific
such that unless parties were investigation. Rule 9 of Order
278 Application no 25(o) of 2006
XXVI is a substantive power allowing the court to
PART N issue a Commission for making

554 a local investigation. Rule 10 is procedural in

nature. Rule 10A is substantive,
allowed to lead evidence, a decision on the
objections could not be taken. Hence, empowering the court to issue a commission for
making a scientific investigation.
on 3 February 2005, the High Court directed that
the ASI report shall be admitted Rule 10A(2) which applies the provisions of Rule
10, in its application to a
in evidence but the objections that were raised by
the parties would be decided at Commissioner appointed under Rule 9, to a
commission for scientific
the final hearing of the suits by which time the
recording of evidence would be investigation contains the expression ―as far as
may be‖. These words
complete. The High Court noted that there is no
requirement in the law or in PART N

Rules 10 or 10A or Order XXVI that the report 555

cannot be treated as substantive
comprehend the notion of that which is practicable,
evidence unless the Commissioner is examined as a and to the extent feasible for
witness. The High Court
the purpose of fulfilling the power which is
observed that none of the parties opted to examine conferred upon the court to issue or
the Commissioner on any
appoint a Commission. The second part of Rule
matter touching the report. Moreover, the 10(2) is enabling insofar as it
objections filed by them did not place a
confers a discretion on the court to either itself
challenge to the entirety of the report but only to examine the Commissioner on
the conclusions drawn in the
matters pertaining to the report or investigation and
for enabling parties to

323
request the court to call the Commissioner for foreclose any party to the proceedings from
examination. Rule 10 does not questioning the report for which, it

abrogate the right to question the report of a was open to it to follow any one or more of the
Commissioner if the enabling power following courses of action

of calling the Commissioner for cross-examination namely:

is not exercised. A party may
(i) Calling for the examination of the
avail of that opportunity by seeking the Commissioner in open court;
examination of the Commissioner on
(ii) Leading evidence of its own witnesses to
matters bearing upon the report. A party may also displace the report of the
lead evidence of its own
Commissioner; and
witnesses who seek to controvert the methodology
or the findings of the (iii) Placing its objections to the report of the
Commissioner for consideration
Commissioner appointed for conducting a scientific
investigation. The right of a by the court. The judgment of Justice Agarwal does
in fact note that the
party to object to the report of the Commissioner is
not abrogated merely objections which parties had submitted to the report
would be decided after
because the Commissioner is not called for cross-
examination. Much will depend the final hearing of the suits, by which time the
evidence would be
on the nature of the objections which are sought to
be urged by a party before the complete. The entitlement of a party to follow or
pursue the courses of
Court though the Commissioner was not called for
examination. action referred to in (ii) and (iii) above was
independent of the enabling
479. In the present case, the High Court was of the
view that there was no power conferred by the latter part of Rule 10A(2).

requirement in law for the Commissioner to be 480. Having said this, it is necessary to bear in
called upon to give evidence as a mind Section 45279 of the

condition precedent to the report being treated as Evidence Act 1872. When the court has to form an
evidence in the suit. The High opinion, among other things,

Court is justified in this view since Rule 10(2) of upon a point of science, the opinions upon that
Order XXVI stipulates that the point of persons specially skilled

report of and the evidence taken by the 279 Section 45 provides

Commissioner ―shall be evidence in the thus: Opinions of experts.—When the Court has to
form an opinion upon a point of foreign law or of
suit and shall form part of the record‖. Hence, the science or art, or as to identity of handwriting [or
report was correctly treated finger impressions], the opinions upon that point of
persons specially skilled in such foreign law,
as evidence in the suit and as the part of the record. science or art, [or in questions as to identity of
This, however, did not handwriting] [or finger impressions] are relevant
facts. Such persons are called experts. Illustrations
PART N
(a) The question is, whether the death of A was
556 caused by poison. The opinions of experts as to the

324
symptoms produced by the poison by which A is proceeded to affirm them as reflecting the correct
supposed to have died are relevant. (b) The position in law:
question is, whether A, at the time of doing a
certain act, was, by reason of unsoundness of mind, ―This in their Lordships‘ judgment is a correct
incapable of knowing the nature of the Act, or that statement of the principle to be adopted in dealing
he was doing what was either wrong or contrary to with the commissioner's report. It is substantially
law. The opinions of experts upon the question the principle already laid down by this Board in the
whether the symptoms exhibited by A commonly case of Ranee Surut Soondree Debea v. Baboo
show unsoundness of mind, and whether such Prosonno Coomar Tagore [(1870) 13 Moo. I.A.
unsoundness of mind usually renders persons 607 at p. 617.].‖
incapable of knowing the nature of the acts which
[See also in this context the judgment of a learned
they do, or of knowing that what they do is either
Single Judge of the Delhi High
wrong or contrary to law, are relevant. (c) The
question is, whether a certain document was Court in New Multan Timber Store v Rattan Chand
written by A. Another document is produced which Sood281]
is proved or admitted to have been written by A.
The opinions of experts on the question whether 481. Dr Rajeev Dhavan, in the course of his written
the two documents were written by the same submissions, fairly accepts
person or by different persons, are relevant.
that ―the court may not have the expertise to sit in
PART N judgment over the experts‖.

557 Yet, according to the submission, certain aspects

can certainly be examined by
in the science at issue are relevant facts. Such
persons, as the statute provides 280 AIR 1940 PC 3
281(1997) 43 DRJ 270
―are called experts‖. The manner in which the
report of an expert must be PART N

evaluated has been delineated in a decision of the 558

Privy Council in Chandan
the court without sitting in judgment over the
Mull Indra Kumar v Chiman Lal Girdhar Das expertise of the Commissioner.
Parekh280. Lord Romer recorded
Those aspects are as follows:
what the Subordinate Judge in that case had held
about the manner in which the (i) Whether the commission has fulfilled the remit
of the court to provide an
report of a local commission should be approached:
answer;
―It has been laid down that interference with the
result of a long and careful local investigation (ii) Whether conditionalities and limitations have
except upon clearly defined and sufficient grounds been observed;
is to be deprecated. It is not safe for a Court to act
(iii) Whether the conclusions are in conformity
as an expert and to overrule the elaborate report of
with the findings;
a Commissioner whose integrity and carefulness
are unquestioned, whose careful and laborious (iv) Whether there are obvious inconsistencies in
execution of his task was proved by his report, and the report; and
who had not blindly adopted the assertions of either
party.‖ (v) Whether conclusions have been drawn beyond
reasonable probabilities.
Having recorded the above observations of the trial
judge, the Privy Council Hence, Dr Dhavan urged that in a first appeal, it is
open to the appellate court to

325
examine the conclusions drawn by the trial court if scientific investigation which could best be
they are unrelated to and in explained by the Commissioner. Rule

excess of the report. Moreover, where all the 10(2) allows the Commissioner to be examined on
parties have not cross-examined any matter mentioned in the

the Commissioner, the trial court and the appellate report or as to the report or as to the manner in
court would be acting within which the investigation has been

its jurisdiction in examining objections based on made. Failure to invoke the enabling power which
consistency, relevance and is conferred in Rule 10(2) may

probability. result in consequences bearing on the failure of the

party to address the
482. In principle, we are of the view that a party to
a suit is not foreclosed from clarifications which it seeks to the Commissioner in
the course of an examination.
raising objections to the report of a Commissioner
or from leading the evidence of In a matter pertaining to scientific investigation, the
court lacks expertise on
its own witnesses to controvert the findings merely
because it has not requested issues requiring domain knowledge which is why
the Commissioner was
the court to summon the Commissioner for the
purpose of examination. But, a appointed in the first place. The object and purpose
of appointing the ASI was to
party which fails to take recourse to the enabling
power which is conferred by direct an excavation at the disputed site so as to
enable the court to form an
Rule 10(2) to request the court to allow the
examination of the Commissioner in objective view on the subject matter of the dispute
on the basis of the material
court, may in a matter touching upon the expertise
of the Commissioner face a found and the conclusions drawn by the ASI. The
failure of a party which seeks to
peril. In the present case, ASI is an expert
authority. Its credentials and expertise question the report of the Commissioner to call the
Commissioner for cross
are beyond reproach. The nature of the objections
which can legitimately be examination may circumscribe the nature of the
objections which can be raised
PART N
before the court for the reason that the
559 Commissioner who was best positioned to

considered by the court will depend upon the explain the report has not been called for
nature of the investigation ordered examination.

to be conducted by the Commissioner and the 483. We accept the proposition urged by Dr
domain expertise involving both Dhavan, learned Senior Counsel

knowledge and experience in the particular branch that as a matter of principle, despite not having
of learning. There may well be called the Commissioner for

certain facets of the report of the Commissioner on PART N

a matter pertaining to the
560

326
examination, a party could still urge objections reign of Vikramaditya at Sri Rama Janmabhumi
before this Court on matters such which was partly destroyed and

as the following: an attempt was made to raise a mosque on the site:

(i) Whether the remit of the court has been fulfilled ―23. That the books of history and public records
by the Commissioner, of unimpeachable authenticity establish
indisputably that there was an ancient Temple of
including Maharaja Vikramaditya‘s time at Sri Rama Janma
Bhumi, Ayodhya. That temple was destroyed partly
a. Whether the Commissioner has decided what
and an attempt was made to raise a mosque thereat,
was not referred; or
by the force of arms, by Mir Baqi, a commander of
b. Whether the Commissioner has not decided Baber‘s hordes…In 1528 Babar came to Ayodhya
something which was and halted there for a week. He destroyed the
ancient temple and on its site built a mosque, still
referred; known as Babar‘s mosque…‖ (Emphasis supplied)

(ii) Whether there are contradictions or The claim in Suit 5 is that (i) there existed an
inconsistencies in the report of the ancient temple at the site of Ram

Commissioner; and Janmabhumi; (ii) the temple dated back to the era
of Vikramaditya; and (iii) Babur
(iii) Whether the conclusions or findings of the
Commissioner arise from the constructed the mosque in 1528 by destroying the
temple and at its site.
report.
Issues
Ultimately, it lies within the jurisdiction of the
court to decide whether the findings 485. In view of the pleadings of the parties, the
following issues were framed in
that are contained in the report of the ASI sub-serve
the cause of truth and justice Suit 4 and Suit 5:

on the basis of relevance and preponderance of ―(a) Issue No. 1(b) in Suit No. 4 ―Whether the
probabilities. Common sense building had been constructed on the site of an
alleged Hindu temple after demolishing the same as
ought to guide the exercise of judicial discretion, alleged by defendant no. 13? If so, its effect?‖ (b)
here as in other branches of the Issue No. 14 in Suit No. 5 ―Whether the disputed
structure claimed to be Babri Masjid was erected
law.
after demolishing Janmasthan temple at its site?‖
Analysis
In order to establish their case, the plaintiffs in Suit
Pleadings 5 need to prove that:

484. The plaintiffs in Suit 5 sought a declaration (i) There existed an ancient Hindu temple at the
―that the entire premises of Sri disputed site;

Rama Janmabhumi at Ayodhya… belongs to the (ii) The existing ancient Hindu temple was
plaintiff deities‖. The pleading in demolished in order to construct

paragraph 23 of th e plaint is that there was an the Babri Masjid; and

ancient temple dating back to the
(iii) The mosque was constructed at the site of the
PART N temple.

561 PART N

327
562 The ASI presented its final report dated 22 August
2003 opining:
The burden of proof to establish a positive case lies
on the plaintiffs in Suit 5 in ―Now, viewing in totality and taking into account
the archaeological evidence of a massive structure
terms of Sections 101 to 103 of the Evidence Act just below the disputed structure and evidence of
1872. continuity in structural phases from the tenth
century onwards upto the construction of the
The purpose of the excavation ordered by the High
disputed structure along with the yield of stone and
Court
decorated bricks as well as mutilated sculpture of
486. While ordering a GPR survey, the High divine couple and carved architectural members
Court by its order dated 23 October including foliage patterns, amalaka, kapotapali
doorjamb with semi-circular pilaster, broken
2002 explained the purpose and object of doing so octagonal shaft of black schist pillar, lotus motif,
in the following terms: circular shrine having pranala (waterchute) in the
north, fifty pillar bases in association of the huge
―The nature of super structure to a great extent is structure, are indicative of remains which are
related to the foundations. …If any foundation is distinctive features found associated with the
existing of any construction, it may throw light as temples of north India.‖ (Emphasis supplied)
to whether any structure existed and if so what
would have been the possible structure at that The basic objection to the ASI report is that no
time…‖ finding was rendered on whether

The GPR survey report dated 17 February 2003 any underlying temple or structure was demolished
found a variety of anomalies and a mosque was

ranging from 0.5 to 5.5 meters in depth that could constructed on its site. In this context, it has been
be associated with ancient and submitted that by its very

contemporaneous structures such as pillars, nature, the report which is an opinion (albeit of an
foundations walls and slab flooring expert body) is not direct

extending over a large portion of the site. The evidence of a fact and is inherently speculative and
survey report however indicated inconclusive.

that these anomalies were required to be confirmed 487. Section 3 of the Evidence Act 1872 defines
by ‗systematic ground the expression ―fact‖ thus:

trothing‘, such as by archaeological trenching. Out ――Fact‖ means and includes- (1) anything, state
of 184 anomalies detected by of things, or relation of things, capable of being
perceived by the senses; (2) any mental condition
the GPR survey, 39 were confirmed during of which any person is conscious.‖
excavation.
However, Section 45 allows for an opinion of an
On 5 March 2003, when the High Court directed expert as a relevant fact when
the ASI to excavate the site, it
the court has to form an opinion upon a point of
was in order to determine: foreign law, science or art or as

―Whether there was any temple/structure which to the identity of handwriting or finger impressions.
was demolished and a mosque was constructed on
the disputed site.‖ PART N

PART N 564

563

328
The distinction between a witness of fact and an archaeological report does not furnish verifiable
expert witness has been conclusions but provides
282 (2016) 4 SCC 571
explained in a decision of this Court in Prem Sagar
Manocha v State (NCT of PART N

Delhi)282: 565

―20…The duty of an expert is to furnish the court inferences drawn from data or objects found during
his opinion and the reasons for his opinion along the course of excavation. It
with all the materials. It is for the court thereafter to
see whether the basis of the opinion is correct and has been urged that interpretations vary and
proper and then form its own conclusion. But, that archaeologists may differ in the
is not the case in respect of a witness of facts. Facts
conclusions drawn from on the same set of data.
are facts and they remain and have to remain as
Hence, there is no absolute or
such forever. The witness of facts does not give his
opinion on facts, but presents the facts as such. universal truth.
However, the expert gives an opinion on what he
has tested or on what has been subjected to any Justice Agarwal, during the course of his judgment
process of scrutiny. The inference drawn thereafter opined:
is still an opinion based on his knowledge...‖
―3896. Archaeology provides scientific factual
The report which has been submitted by the ASI is data for reconstructing ancient historical material,
an opinion; an opinion culture, understanding. Archaeology… is a multi-
disciplinary scientific subject and requires a team
nevertheless of an expert governmental agency in of workers for effective results. Excavation of
the area of archaeology. The ancient sites is one of the major works of
Archaeologists. As it is a scientific discipline, it
report constitutes the opinion of an expert. Expert
uses scientific methods in its working.‖
opinion has to be sieved and
Ms Meenakshi Arora, learned Senior Counsel has
evaluated by the court and cannot be conclusive in
urged that contrary to the
and of itself.
above finding, expert witnesses have testified to
Archaeology as a discipline
archaeology being a matter of
488. The report which has been presented by ASI is
inference and interpretation:
assailed on the ground that
(i) Jayanti Prasad Srivastava (DW 20/5), who
as distinct from the natural sciences, archaeology is
retired as a Superintending
a branch of knowledge in the
Archaeologist in the ASI deposed in support of the
social sciences and is inherently subjective. The
report. He stated:
submission is that an
―…Interpretation is an important aspect in
archaeologist, in order to arrive at a conclusion,
excavation…‖
draws inferences from a variety
―…By the word conjure, I mean conjectural
of other disciplines including history, sociology
picture which could be based on the available
and anthropology. The process of
evidence and it is very much in the practice in
inferential reasoning – it is urged - may lead to archaeological diggings…‖
multiple layers of subjectivity
(ii) R Nagaswami (PW 17), who retired as Director
affecting the ultimate conclusions. Hence, it has of Archaeology in the
been submitted that an

329
Government of Tamil Nadu and was an expert was made by Dr Ashok Datta (PW 31), a senior
witness for the plaintiffs in lecturer in the Department of

Suit 5 stated: Archaeology of the University of Calcutta. Dealing

with figure 23 of the ASI report
―…In archaeology data collected in excavation
needs to be interpreted from the context and (the isometrical figure), he noted that it was not to
reference to related textual material from known scale or elevation of different
authentic sources. If we are to repeat what is
mentioned in the excavation report, the purpose of floor levels and it may be considered purely
conjectural. R Nagaswami (OPW 17)
PART N
and Jayanti Prasad Srivastava (DW 20/5) supported
566 the view of the ASI report

excavation which is reconstruction of the history, is regarding the existence of a massive Hindu temple
not possible…‖ (Emphasis supplied) at the disputed site. On the

(iii) Professor Dr Shereen F Ratnagar (PW 27), a other hand, Dr Supriya Varma (PW 32) agreed with
former professor of the finding of the ASI

archaeology at JNU who was an expert witness for PART N

the plaintiffs in Suit 4
567
stated:
regarding the existence of the structure underneath
―What constitutes a fact itself can be disputed. the disputed structure but
However, if the fact is established, there may be
two opinions on the fact by two Archaeologists...‖ disagreed with the interpretation. These depositions
have been relied upon to
(iv) Dr Supriya Varma (PW 32), who was an
Associate Professor of suggest that archaeologists can and do disagree on
the interpretation of data
Archaeology in the School of Social Sciences at the
University of because the field is essentially inferential.

Hyderabad stated : 490. Archaeology as a science draws on multi-

disciplinary or trans-disciplinary
―…When archaeologists excavate and find
archaeological material which can include pottery approaches. In considering the nature of
and bones inference and interpretation are made by archaeological evidence, it is important
archaeologists on the basis of the context in which
to remember that archaeology as a branch of
these finds are exposed. The data does not speak
knowledge draws sustenance from
for itself. Inferences are made on the basis of
certain principles and methods that are followed in the science of learning, the wisdom of experience
archaeology…‖ and the vision which underlies
489. About the existence of 17 rows of pillar the process of interpretation. As a discipline, it
bases from north to south with nurtures a trained mind. It relies
each row having 5 pillar bases, R Nagaswami on a cross-fertilization with other disciplines such
(OPW 17) stated that it was only as history, sociology and
an inference as all the 85 pillar bases had not been anthropology. This is not a weakness but a
exposed. A similar statement strength. Archaeology combines both

330
science and art. As a science, it is based on the Excavation in layers is in and of itself a complex
principle of objective evaluation. exercise. Interpreting the

As an art, it relies on a vision which is realised findings in turn involves navigating through
through years of commitment to layered complexities. Sir Mortimer

the pursuit of knowledge based on the histories of notes:

eras. Archaeology as a
―Well, there are examples of various kinds of
discipline cannot be belittled as unreliable. The stratigraphical evidence: of layers that are
value of archaeology cannot be contemporary with one another, layers that are
separated by greater or lesser time-intervals, layers
diluted in the manner which has been suggested by that have accumulated in unbroken succession. The
laying a claim to its being a reading of a section is the reading of a language
that can only be learned by demonstration and
weak form of evidence.
experience. A word of advice to the student.
491. While considering archaeological evidence However practiced, do not read too hastily. Be your
within the framework of Section own devil‘s advocate before passing judgment.
And, wherever possible, discuss your diagnosis
45 of the Evidence Act and the court-ordered with others – with colleagues, with pupils, with
excavation in the context of the your foreman. (‗The testimony of one person is no
testimony; declares Hywel Dda, the wise Welsh
provisions of Rule 10A of Order XXVI of the CPC, law-giver.) Be humble. Do not ignore the opinion
it is nonetheless necessary for of the uninstructed. ‗Everyone knows as much as
the savant. The walls of rude minds are scrawled
the court to appreciate both the strength and the
all over with facts, with thoughts‘. Emerson said
limits of the discipline.
so, and he was right. Even if you do not accept the
Archaeology is no exception. A distinguished views of those you question, the mere act of
archaeologist, Sir Mortimer Wheeler questioning is at the same time a restraint and a
stimulus.‖
PART N

568
283 Mortimer Wheeler, Archaeology from the
summarised the experience which he gained, in his earth, Oxford: Clarendon Press (1954)
work titled ―Archaeology
PART N
from the Earth‖283. Dealing with stratigraphy, Sir
Mortimer notes: 569

―an ancient city in the East is never level. Very Sir Mortimer‘s caution would apply as much to the
rarely is a city completely destroyed and law as to archaeology:
completely rebuilt at one moment and at one
horizon. Normally, a house is reconstructed or something that we as judges would do well to bear
replaced as it decays, or at the whim of its owner. in mind in arriving at our
The town as a whole is constantly in a state of
conclusion in these appeals.
differential destruction and construction. Individual
building sites rise above their neighbours; the 492. In his book titled ―The Logic of Scientific
town-site itself rises and assumes the contour of a Discovery‖284, Karl Popper
hill; buildings on its slopes are contemporary with
buildings on its summit. A doorway or a potsherd distinguishes the work of a scientist with that of a
may be found at one spot 10 feet below a doorway philosopher. Popper quotes
or a potsherd of precisely the same date at another
spot.‖ Lord Acton when he states:

331
―there is nothing more necessary to the man of we can eschew extreme positions and search for the
science than its history and the logic of often elusive median.
discovery….: the way error is detected, the use of
hypothesis, of imagination, the mode of testing.‖ 493. Ms Meenakshi Arora relied on decisions of
this Court which consider
The supposed distinction between science as
embodying absolute truth and reports of handwriting experts to be ―generally of
a frail character‖ leading it to ―be
archaeology as unguided subjectivity is one of
degree not of universes. Yet as in wary to give too much weight‖ to them. This form
of evidence has been held to be
other disciplines of its genre, archaeology is as
much a matter of process as it is ―indecisive‖ and hence something which must
yield to positive evidence. The
of deduction. The archaeologist must deal with
recoveries as much as the ‗finds‘ reason for this was explained in Sri Sri Sri Kishore
Chandra Singh Deo v Babu
from them. Interpretation is its heart, if not its soul.
Interpretations do vary and Ganesh Prasad Bhagat285, on the ground that the
conclusions of handwriting
experts disagree. When the law perceives an
exercise of interpretation it must experts are drawn ―upon mere comparison of
handwriting‖. The principle was
recognize margins of error and differences of
opinion. Archaeological findings are reiterated in Smt Bhagwan Kaur v Shri Maharaj
Krishan Sharma286. In Murari
susceptible of multiple interpretations. This may in
part be a function of the Lal v State of Madhya Pradesh287, this Court held
that it would be unsafe to
archaeologist‘s perception of the past and what
about the past the archaeologist found a conviction solely on the opinion of a
handwriting expert. While
seeks to decipher. Tradition based archaeology may
seek facts about the past. formulating the principle, this Court however noted
that the weight to be ascribed
An archaeologist, on the other hand may set about
to validate a belief about the to expert evidence is based on the nature of the
science on which it is based.
past. An archaeologist may approach the task with
an open mind to unravel Where the science in question possesses essential
ingredients of verifiability and
features that are unknown. Guided by the
underlying approach to the discipline, objective analysis, expert evidence would to that
extent require some deference.
the archaeologist will bring to bear on the task at
hand the purpose underlying its The Court held:
284 Karl R. Popper,The Logic of Scientific
―4…The more developed and the more perfect a
Discovery, Hutchinson & Co (1959)
science, the less the chance of an incorrect opinion
PART N and the converse if the science is less developed
and imperfect. The science of identification of
570 finger-prints has attained near perfection and the
risk of an incorrect opinion is practically non-
own origin. So long as we understand the limits existent. On the other hand, the science of
and boundaries of the discipline, identification of handwriting is not nearly so
perfect and the risk is, therefore, higher...‖

332
 285 AIR 1954 SC 316 required of an archaeologist. It becomes necessary
286 (1973) 4 SCC 46 287 (1980) 1 SCC 704 to dwell on the process

PART N adopted by ASI in conducting the excavation.

571 288 (1992) 3 SCC 700

289 AIR 1964 SC 529 290 (2017) 5 SCC 817 291
Thus, in the above extract, the court made a (2019) SCC Online SC 1098
distinction between identification of
PART N
fingerprints and opinions of handwriting experts.
Hence, the weight that should be 572

given to expert evidence is based on the nature of The process

the underlying science on the
494. The High Court issued detailed directions for
basis of which the expert opines. Commenting on the preservation of the record
the imperfect nature of the
of excavation. Following the order of the High
science of identification of handwriting this Court Court on 5 March 2003, a fourteen
in State of Maharashtra v
member ASI team was constituted by the Director
Sukhdev Singh288 held: General. On 11 March 2003,

―29…But since the science of identification of the High Court directed that a general survey of the
handwriting by comparison is not an infallible one, site and layout of trenches
prudence demands that before acting on such
opinion the court should be fully satisfied about the would be conducted in the presence of contesting
authorship of the admitted writings which is made parties or their counsel.
the sole basis for comparison and the court should
Videography was ordered and the results were to
also be fully satisfied about the competence and
be placed in a sealed cover.
credibility of the handwriting expert… True it is,
there is no rule of law that the evidence of a The materials recovered were also directed to be
handwriting expert cannot be acted upon unless preserved ―under lock and seal‖
substantially corroborated but courts have been
slow in placing implicit reliance on such opinion in a building situated in proximity to the site.
evidence, without more, because of the imperfect Periodical progress reports of the
nature of the science of identification of
handwriting and its accepted fallibility…‖ work of excavation were submitted to the High
Court. The High Court was
[See also in this context: Shashi Kumar Banerjee v
Subodh Kumar periodically informed about the trenches which had
been laid, the nature of the
Banerjee289, S P S Rathore v CBI290 and
Chennadi Jalapathi Reddy v Baddam excavation and the material that was recovered. On
26 March 2003, the High
Pratapa Reddy291.]
Court issued specific directions to the ASI team to
The attempt by Ms Arora, learned Senior Counsel maintain a register recording
in her submissions to compare
the recovery of finds, which was to be sealed in the
archaeological evidence with handwriting analysis presence of parties. The
is flawed. Underlying this
following directions were issued:
submission is an erroneous appreciation of the
knowledge, skills and expertise

333
―(i) ASI team shall note down in its own register confidence of the parties and their counsel in the
to be maintained (in respect of recovery of finds) matter of excavation. It is, however, to be kept in
the depth in meter/feet of the trench where it is mind that we have directed for expeditious
found. It may also note down the layer of the strata excavation and for that purpose if necessary and
according to its own interpretation. (ii) The without losing the confidence of the parties more
signature of either the contesting parties or their than two trenches may also be laid by the ASI
counsel may be obtained. (iii) The register should team.‖
further specify the nature of the finds i.e. bones and
glazed ware etc. (iv) The finds shall be sealed in Another suggestion was that there must be
the presence of the parties/counsel and signatures adequate representation to the
of either the contesting party or his/their counsel
Muslim community in the ASI team and in the
shall also be obtained who are present on the spot.
engagement of labour for the work
(v) If the nature of the finds is not certain, a noting
may be made accordingly and when it is unsealed, of excavation. This was also acceded to by the
its nature may be verified after the Court permits to High Court by directing that
do so.‖
adequate representation for both the communities
PART N should be given in the
573 constitution of the ASI team and the labour deputed
at the site. In order to ensure
Photographs both in colour and black and white
were directed to be taken. A transparency, two judicial officers from the Uttar
Pradesh Higher Judicial Service
register of work carried out from day to day was
directed to be prepared by the of the rank of Additional District Judge were
deputed to oversee the work. The
ASI team. Parties were also permitted to observe
the work of excavating process of excavation was carried out in the
presence of parties and was
trenches. The High Court observed:
PART N
―228... 4. It is suggested by Sri Jilani, learned
counsel for the Sunni Central Board of Waqfs, that 574
not more than two trenches should be excavated at
one time after the completion of work in the governed by the directions issued by the High
trenches already being excavated for the reason that Court to ensure impartiality and
the parties or their counsel may not be able to
observe the excavation of the trenches at one time. transparency. This was facilitated by directing the
Sri B.R. Mani, Superintending Archaeologist and preservation of records,
team leader has submitted a report dated 22.3.2003
videographing of the excavation process,
stating that it has carved out various trenches of
preservation of photographs and by the
area 4 x 4 meters leaving 0.5 meter baulk all
around. If the trenches are adjoining to each other, presence of two judicial officers for the purpose of
it can be observed by the contesting parties or their overseeing the work. After the
counsel and their nominees. We have permitted for
each of the contesting parties to observe with their completion of the excavation work but before the
counsel as well as their nominees (one nominee at preparation of the final report,
one time). The result is that for each of the
contesting parties, there are three observers. If the further directions were issued by the High Court on
distance is too much and it is difficult to observe 8 August 2003 for keeping
another trench by any of them, they can
intact all the trenches so as to facilitate the ASI
legitimately raise grievance in this respect. It may
team to complete the study and
be noted that the ASI team should ensure

334
submit its report. 496. The ASI submitted its final report on 22
August 2003 together with a
495. The ASI report has ten chapters which consist
of: complete record containing field notebooks, series,
registers, site notebooks and
Chapter I Introduction
a laptop together with a hard disk and compact
Chapter II Cuttings disks. The record that was

Chapter III Stratigraphy and Chronology submitted by the ASI together with its report has
been tabulated in paragraph 241
Chapter IV Structure
of the judgment of Justice Sudhir Agarwal. In
Chapter V Pottery
assessing the report of the ASI, it
Chapter VI Architectural Fragments
must therefore be borne in mind that a structured
Chapter VII Terracotta Figurines process was followed in the

Chapter VIII Inscriptions, Seals, Sealings and course of excavation in order to ensure that the
Coins process of excavation was

Chapter IX Miscellaneous Objects documented both in electronic and conventional

forms. What is excavated and
Chapter X Summary of Results
found is a matter of fact. Undoubtedly, the
Appendices I to IV to the report contain the archaeologist has to relate the data
following information :
which emerges from the excavation to a context.
Appendix I C14 Dating of Charcoal Samples from The process of drawing
Ayodhya excavation
inferences from data is an essential element of
Appendix IIA Report on the Chemical Analysis of archaeology as a discipline but to
Plaster Samples
reject this exercise as conjectural and hypothetical
pertaining to different trenches collected from would be a dis-service both to
Ayodhya
the discipline and to the underlying process. No
PART N submission questioning the

575 independence of the ASI team has been urged by

Ms Arora. In this backdrop, the
Appendix IIB Report on the Chemical Analysis of
Floor Samples pertaining fact the none of the parties called for examination
of any one from the ASI team
to different trenches collected from Ayodhya
under the provisions of Order XXVI Rule 10 (2)
Appendix III On-Site Chemical Treatment and cannot be ignored.
Preservation of Excavated
PART N
Artefacts
576
Appendix IV Information on the Data-Form as per
direction of Special Full The Idgah defence

Bench, Lucknow of the Hon‘ble High Court, 497. The case of the plaintiffs in Suit 5 is that
Allahabad. below the disputed site there was

335
an ancient temple dating back to the era of 577
Vikramaditya which was destroyed by
Masjid‘. This indeed, was not the case which was
Mir Baqi, the Commander of Babur‘s forces and made out in the pleadings and
that the Babri mosque was built
was directly contrary to the case of the Sunni
upon it. It is alleged that the material used to Central Waqf Board that the
construct the mosque was taken
mosque had not been constructed upon the site of
from the destroyed temple, including the black an existing temple but was
Kasauti stone pillars.
constructed on vacant land. The reference to the
In its written statement, the Sunni Central Waqf existence of an Idgah in the
Board denied that there was in
underlying excavation was sought to be established
existence any temple relatable to the era of through the archaeologist
Vikramaditya at the site of Babri
witnesses – Dr Jaya Menon (PW 29), Dr Supriya
Masjid. It also denied that the mosque was Verma (PW 32) and R C
constructed at the site of a temple by
Thakran (PW 30).
utilising the material used in the underlying temple.
In the written statement, the Mr C S Vaidyanathan, learned Senior Counsel
appearing on behalf of the
Sunni Central Waqf Board also stated in paragraph
24(b) that: plaintiffs in Suit 5, urged that none of the witnesses
produced by the Sunni
―Emperor Babur was a Sunni Muslim and the
vacant land on which the Babri Masjid was built Central Waqf Board deposed to the existence of an
lay in state territories and did not belong to anyone Idgah. The High Court
…‖
observed:
It therefore denied that there existed any underlying
―3809. Initially the case set up by the plaintiffs
temple below the disputed
(Suit-4) was that the building in dispute was
site or that the underlying temple was destroyed for constructed at a place where (there) neither…
the construction of the existed any Hindu religious structure nor (was) the
place in dispute (a) place of worship…However,
mosque. when the excavation proceedings progressed, a
marked change in the approach of plaintiffs (Suit-
498. Initially, the defence that was urged in 4) became evident. Some of the archaeologists,
response to the plaint in Suit 5 was who also deposed later in favour of plaintiffs (Suit-
4)…tried to set up a new case that there appears to
that there was no underlying structure which was
be an Islamic religious structure existing beneath
demolished for the construction
the disputed building or that there existed an
of the mosque. Confronted with the findings in the Islamic religious structure when the disputed
ASI report, the Sunni Central building was constructed. The suggestion was that
it could be either an Idgah or a Kanati Masjid
Waqf Board altered the stance and sought to claim wherein only one long wall on the western side was
that among the structures that constructed with a niche. The consensus appears to
be amongst the eight experts of Muslim parties,
came to be revealed during the course of the more or less accepting the existence of a structure
excavation was an ‗Idgah‘ or ‗Kanati beneath the disputed structure. The above approach
that the earlier structure was a Islamic religious
PART N
structure excludes the possibility of a nonreligious

336
structure at the disputed site beneath the disputed inner side with lime plaster while on the outer side
structure. It narrows down our enquiry to the the plaster was provided in the second phase of its
question whether such structure could be an Islamic raising. There are a few square cavities at intervals
religious structure or non-Islamic structure i.e. a on both the faces of the wall in the second phase
Hindu Religious Structure.‖ which might have been used for providing
reinforcement to the wall…‖
PART N
Walls 16 and 17 were found to be in a similar
578 north-south alignment:

The defence which was taken was that the pre- ―…Walls 16 and 17 were found running on
existing structure had an Islamic almost the same alignment in north-south
orientation in trenches ZE1 and ZF1.‖
origin. Once this defence was taken the issue
narrowed down to whether the pre PART N

existing structure had an Islamic or non-Islamic 579

origin. The ASI report had
Wall 17 is a brick wall which was 1.86 m wide
concluded that there was a Hindu temple with four courses in the northern
underlying the disputed structure and
area and six courses in the southern area. Wall 17
the correctness of this opinion was being tested. had the same length as wall

499. During the course of the excavation, 28 walls 16. Wall 17 runs at a lower level:
came to be traced as shown
―The wall 17 which is a brick wall was found to
in figure 3A of the report. Of this, wall numbers 1 be 1.86 m wide having the maximum of four
to 15 belong to or were courses in the northern area (Pl. 50) and six courses
in southern area. It was found to be of the same
contemporaneous to the disputed structure. Wall
length as that of wall 16, though having a slight
numbers 16 to 28 dated prior to
deviation in its orientation in the cardinal direction.
the disputed structure and were found underneath. Thus, it runs in the lower level than that of wall 16,
The ASI report found that wall almost parallel to it in the northern area and comes
out below the wall 16 in the southern area as
16 with a length of 50m had a width of 1.77m. Ten noticed in trench D7 where in the northern part it is
of its lower brick courses were projected 0.74 m below wall 16 and in the southern
part it is projected 1.07 m below wall 16 having
original while the upper six courses were added provided decorated stone blocks on its top and also
later in the subsequent phase of refixed in its veneer (Pl. 51), probably at the time
of the construction of wall 16 to serve as its
construction:
foundation. A thick floor of brick crush (Pl. 52)
―The wall 16 having its existing length around spread over a large area in northern and southern
50m, with its unexposed middle part, is 1.77m areas with varying thickness was found associated
wide. Its ten lower brick courses are original and with wall 17.‖
belong to the first phase of its construction, but the
The ASI report notes the existence of inner walls
upper six courses as seen in trenches E6, E7 and E8
which are attached to wall 16
are added at a later date – four courses during the
second phase of construction and top two courses both in the northern and southern areas. In the
when its southern length outside the disputed northern area, the inner wall (wall
structure was utilized in later constructions by
reducing the width of the wall for the new structure 18A) extends to a length of 15m in the East–West
along with the structure 3. It is also noticed that the direction. Similarly, the
first phase of wall 16 has been plastered in the

337
excavation found two parallel walls (walls 18C and them resting over floor 4, top of which was
D). Accordingly, these findings provided with sandstone or calcrete blocks in lime
mortar, these blocks were also encased with brick-
indicate that the case that wall 16 was a single bats and somewhere sandstone chips were used to
Idgah wall stands belied and the get the desired height and level.‖

claim of the Sunni Central Waqf Board that an Seventeen rows of pillar bases were revealed from
Islamic structure existed below the north to south, each row with

disputed site cannot be accepted. Moreover, the five pillar bases. The pillar bases in the central
defence in regard to the portion below the makeshift

existence of an Idgah beneath the mosque would structure on the raised platform could not be
postulate that the mosque was located due to the area restrictions

built on the foundation of a demolished Idgah. imposed by the High Court. Out of fifty excavated
Besides being a far-fetched pillar bases, twelve were

hypothesis, the nature of the recoveries belied the completely exposed, thirty-five were partially
claim. The Idgah defence was exposed while three could be traced

hence an afterthought, quite contrary to the in sections. The report notes that the controversy
pleadings of the Sunni Central Waqf about the association of the

Board. The defence was an attempt to gloss over pillar bases with different layers and in respect of
the initial case that the mosque their load bearing capacity was

was built over vacant land. The underlying set at rest after the original form of the bases was
structure was not of an Islamic origin. exposed:

PART N ―…The present excavation has set aside the

controversy by exposing the original form of the
580
bases having calcrete and stone blocks arranged
Disputed Structure and Pillar Bases and set in a proper manner over a brick foundation
and their arrangements in rows including their
500. The ASI report discloses that the disputed association with the top floor of the structure
structure or structure 3 was existing prior to the disputed structure.‖

found to be directly resting over structure 4 which PART N

is an earlier construction.
581
Structure 4 had a 50m long wall (wall 16) in the
west and fifty exposed pillar Forty-six pillar bases belong to floor number three
and pertain to period VII dating
bases to its east, attached with floor 2 or the floor
of the last phase of structure 4. back to the twelfth century A.D., while four pillar
bases belong to floor number
The report notes:
four dating back to the eleventh century A.D.
―A square sandstone block placed at the top and Seventeen rows of pillar bases were
the orthostats provided on its four sides,
contemporary with the floor 2 was the prima facie constructed along the north-south brick wall (wall
nature of the pillar base which primarily served as 16). The ASI report deduces
base for the pillar erected over it. Their foundations
from the arrangement of the pillar bases that the
were circular or square or irregular in shapes made
central part of the pillared
of brick-bat courses laid in mud mortar, most of

338
structure was important and special treatment was 501. The ASI report refers to the presence of an
given to it in architectural east facing brick shrine

planning. The decorated octagonal sand stone block labelled as Structure 5 (corresponding to plates 59
on pillar base number thirty and 60 of the photographs).

two having flower motifs on four corners in trench The circular structure possesses a rectangular
F7 in the southern area is projection in the east and has a

stated to be a unique example at the site which chute or outlet which according to the ASI is a
belongs to the twelfth century ‗pranala‘ for draining out water.

A.D. as it is comparable to the ones found in This brick circular shrine is stated to be similar to
Sarnath. In the backdrop of these Shiva temples near Rewa in

observations in the ASI report, the finding which Madhya Pradesh at Chandrehe and Masaon
was arrived at by the High Court belonging to 950 A.D. and a Vishnu

was thus: temple and another temple without a deity at Kurari

and a Surya temple at Tinduli
―3904. A perusal of the report particularly at page
54 shows that all the 50 exposed pillar bases are in Fatehpur district. ASI has drawn an inference
attached with floor 2 dateable to 1200 A. D. and that on stylistic grounds, the
most of them are resting over floor no. 4 which has
the earliest floor. The carbon dating report referred circular shrine dates back to the tenth century A.D.
at page 69 of the report also proves that in a trench
In the context of the above findings, Mr C S
ZH1 the date reported between floor 2 & 3 is
Vaidyanathan has relied on the
between 9001300 A.D. which prima facie makes it
clear that floor 2 was not made after 1300 A.D. and testimony of the expert witnesses, to displace the
not before 900 A.D. while floor 3 was made before submission of the Sunni
900 A.D. It is also clear from the report that all the
pillar bases exposed are attached with the floors Central Waqf Board that these witnesses produced
existing prior to the floor of disputed structure. by them do not support the
Pillar base is reported from the same trench, i.e.
ZH-1 along with the floor which confirms the ASI report. The following extracts from the
association of floor 2/3 and pillar bases along with depositions of the expert witnesses
C14 date between floor 2 & 3 (S. No. 47 of pillar
need to be borne in mind:
base in page no. 28). The same pillar base of ZH-1
was predicted as an anomaly in the GRP Survey. (i) Suraj Bhan (PW 16) –
Therefore, it is clear that floor 4 which supports the
foundation of pillar bases was the most extensive ―I agree with the report of ASI about the remains
floor belonging to period VII A (page 42 of the of Temple to the extent that these remains may
report & fig. 23 & plate 35). The timing of period have been of some temple.‖
VIIA is the beginning of 12th century.‖
(ii) D Mandal (PW 24) –
PART N
PART N
582
583
The ASI report concludes that there is in existence
a massive underlying ―…a decorative stone has been fixed in wall no.
17. This decorative stone is floral motif, it is used
structure, below the disputed structure. in Hindu Temples.‖

Circular Shrine

339
... ―It is correct to say that construction activities suggest any lateral thrust of the mihrab. It may be
had been carried out at the disputed site even noted that the sub-structure of the mihrab is built
before the Mughal Period. As an Archeologist I massively on the edges of the four corners, to
admit discovery of structures beneath the disputed counter the lateral thrust. One wonders, if it was a
structure during excavation.‖ tomb without any arch or dome, and without even a
grave? 3942. Thus, on the one hand the
(iii) Supriya Verma (PW 32) – dimensions of this structure are too small for a
tomb and on the other the gargoyle was never in
―…I agree with the finding of ASI regarding
tombs while it was an integral feature of the
existence of the structure but I disagree with the
sanctum of Shiva temples to drain out water poured
interpretation arrived at by ASI. Further, it is
on the Sivlinga. 3943. Shrine is a holy place where
correct to say the disputed structure was not
worship is performed. It is a structure where
constructed on the virgin land.‖
holiness is enshrined. Denial for the sake of denial
(iv) Dr Ashok Dutta (PW 31) - should not be allowed. "No evidence to make this
structure a shrine" and "a sheer figment of
―…I agree with the opinion of ASI that there lie a imagination and a conjecture without any
number of structures in the form of walls and floors evidentiary basis", such comments grossly lack
beneath the disputed structure. Wall no. 1 to 15 technical acumen and clearly show the dearth of
may be related to the disputed structure. Wall no. logical thinking. These themselves are mere
16 onwards are walls belonging to a period before arguments lacking "evidentiary basis". By these
the construction of the disputed structure.‖ and many like arguments show the 'ostrich attitude'
of the plaintiff. 3944. A structure is identified by
Dealing with the circular shrine, the High Court its shape and/or by the use it was put to or by the
observed: function it was supposed to perform. This circular
structure was found with a well defined 'Pranala'
―3937. The elevation, as shown in the drawing
(water chute to drain out ablution liquids).The
(Fig. 17 of the ASI Report) suggests that this
pranala could well have been denoted as drain but
structure was built on a raised platform, viz.
the area from where it was issuing was only 40 x
adhisthana. The gargoyle, or the drain, was
60 m (including the squarish hollow chamber for
provided on the northern side. The structure may be
fixing the object of worship and the small entrance
dated to 9th-10th century A.D. (The ASI carried
of the east) which could not be used for bath room
out C-14 determination from this level and the
or for kitchen, a few alternatives where water is
calibrated date ranges between 900 A.D. and 1030
required to be drained out, thus, the only valid
A.D.). 3938. This was an independent miniature
explanation was it being a 'pranala' of a shrine,
shrine. The architectural features suggest that, that
small only a subsidiary one and not the main shrine
it was a Shiva shrine. 3939. It is unthinkable that
holding central/main deity. 3945. Circular Shrine
inspite of these clear features of Shiva shrine, the
is found resting over wall 19A and others, this
objectors are identifying the same as a Muslim
single fact, does not make the 'Circular Shrine'
tomb. 3940. Secondly, it is too small a structure
Contemporary to the said walls, as the working
for a tomb, from inside it is only 4.4 ft. square.
level for the 'Circular Shrine' is much higher, and
Neither could it accommodate a grave in its
only foundations of Circular Shrine rest over the
interior, nor a Qiblah-Mihrab on its western wall ;
existing walls, which have been incorporated as
Qiblah was an integral and essential part of tomb-
foundation of Circular Shrine, these walls
structure during the Sultanate period (1192-1526
definitely are not made for providing foundation to
A.D.) as is illustrated by numerous examples all
the circular Shrine. Apparently, when the Circular
over northern India.
Shrine was built the wall 19A and others were all
PART N buried under the ground and foundation of the
circular shrine just reached upto that level.‖
584
PART N
3941. Thirdly, there is no trace of an arch required
for constructing dome over the tomb. There are no 585
hook-shafts to bear and no structural trace to

340
There is a significant aspect in relation to the Art Terms, Oxford Paperback Reference, OUP
circular shrine which must be borne Oxford, 2010, pg 191

in mind. This is the presence of pillar bases above PART N

the circular shrine. This aspect
586
must be taken into account while ascertaining the
overall weight to be ascribed to Chapter VI of the ASI report which deals with
architectural fragments states that
the ASI report.
among the recoveries, the notable ones are:
As regards the use of lime surkhi, it is urged by Ms
Meenakshi Arora, learned ―A few intact architectural members like Amlaka
(plate 81, figure 59) pillar with Ghata-Pallava base
Senior Counsel that this is a typical material used with dwarf beings as weight-bearers and
in Islamic structures. Kirtimukhas (plates 82-83, figure 59) to mention a
few, have also been recovered. Besides, there are a
Controverting this, Mr C S Vaidyanathan has number of architectural members which have been
placed reliance on the deposition of decorated with deeply carved foliage motifs. This
pattern is a distinct one resembling like that of
Suraj Bhan (PW 16) who stated :
―stencil‖ work (plates 8687). It may be pointed out
―it is correct to say that lime water was found to that the various architectural members with similar
have been used in the 3rd Century A.D. during the decorative designs have been found used in the
Kushana period in Takshshila and Pakistan…‖ foundation of one of the major brick structures
(wall 16) (see Chapter IV- Structures) exposed in
Similarly, Dr Jaya Menon (PW 29) also stated these excavations. The aforesaid pillars and other
that : decorative architectural members of this site like
fragment of broken jamb with semi pilaster (plate
―…lime mortar was definitely used from 85), fragment of an octagonal shaft of Pillar (plate
Neolithic period.‖ 84), a square slab with Srivatsa motif (plate 88),
fragment of lotus medallion motif (plates 89-90)
Further elaboration is hence not required on the use
emphatically speak about their association with the
of lime surkhi.
temple architecture. Stylistically, these
Architectural fragments architectural members in general and pillars in
particular may be placed in a time bracket of
502. Archaeological excavation of the disputed site tenthtwelfth Century A.D. It is also pertinent to
at Ayodhya resulted in the note that there are a few architectural members
(plates 92-94), which can clearly be associated with
recovery of architectural fragments such as pillars, the Islamic architecture on stylistic grounds, which
pilasters292, broken door might belong to sixteenth century A.D. onwards.
In addition to the architectural fragments, a highly
jambs, lintels, brackets, etc. These were retrieved
mutilated sculpture of divine couple seated in
as disjecta membra or broken
alinganamudra has also been recovered. The extant
fragments from areas ranging from the surface of remain depicts the waist, thigh and foot (plate
the mound to a considerable 235).‖

depth in the trenches which were excavated. 503. During the course of the hearing, we have had
the benefit of perusing the
292 ―Pilaster is a
shallow pier or rectangular form projecting from a plates depicting the photographs of the
wall and, in classical architecture, conforming to architectural fragments. Ms Meenakshi
one of the orders and carrying an entablature.‖ -
Arora, learned Senior Counsel criticised the use of
Michael Clarke, The Concise Oxford Dictionary of
the expression ―divine couple‖

341
to depict the recovery reflected in plate 235. The as a symbol has been used to decorate shrines.
criticism advanced by counsel is
504. Ms Arora sought to rely on the testimonies of
not unfounded. The sculpture reflected in the plate Jayanti Prasad (DW 20/5)
is (as the ASI report states)
and Dr Supriya Verma (PW 32) in support of the
―highly mutilated‖. According to the ASI team, submission that apart from
what remains of the sculpture
Hindu religious structures, these architectural
indicates a ―waist, thigh and foot‖ of a couple. fragments could belong to Buddhist
This may well be an imaginative
or Jain structures as well. Dr Supriya Verma states
PART N that it could well have been a

587 part of palaces or may belong to an Islamic

structure. Extracts from the
extrapolation of archaeological experience. But,
calling it a ―divine couple‖ is depositions of the two witnesses are set out below:

beyond the stretch of imagination. Excluding this 293 Adam Hardy, Indian temple architecture form
from consideration, the ASI and transformation the ar a r vi a tradition, th
to th centuries. New Delhi: Indira Gandhi
team has on a cumulative analysis of all the other National Centre for the Arts (1995)
findings arrived at the
PART N
inference that stylistically these architectural
findings and pillars in particular 588

belong to the time span of the tenth to twelfth ―(a) Mr. Jayanti Prasad Srivastav (DW 20/5), an
century A.D. and are typical of expert witness who supported the ASI Report: ―…
Amongst Jains, big temples are found but
temple architecture. This inference, as it appears architectural pattern is the same i.e. North Indian
from the above extract is Shikhar style…‖ (b) Dr Supriya Varma (PW 32)
deposed thus: ―I think, very categorically it is
independent of the sculpture of the couple found in
very difficult to say that some of the finds of ASI
―alingan mudra‖. Hence even
relate to Hindu religious structures because these
excluding the above sculpture, there is a reasonable finds could well have been part of palaces,
basis for an expert to draw Buddhist structure, Jain structure and Islamic
structure…‖
the above inference.
The possible linkages of Buddhist or Jain traditions
During the course of excavation, ASI recovered an cannot be excluded. Indeed,
‗Amalaka‘ which is typically a
in assessing archaeological or historical material
segmented or notched globular stone disc with one must eschew an
ridges on its rim with which sits on
unidimensional view. The excavation in the present
top of the Hindu temples‘ shikhara or main case does in fact suggest a
tower.293 An amalaka may also
confluence of civilisations, cultures and traditions.
resemble a lotus and is a symbol of a deity seated
below. ASI also recovered a Carefully analysing these depositions, the issue
essentially is whether this will
‗ghatapalava‘ motif which is associated with a
ceremonial offering to a deity and discredit the overall findings contained in the ASI
report. In specialised subjects,

342
experts may and do differ. The statement that some of discrete recoveries or finds. However, the test
of the fragments belong to which the court must apply is

an Islamic structure has in fact been noticed in the whether on a preponderance of probabilities, the
ASI report. The report conclusions which have been

specifically speaks of those fragments denoted by drawn by the ASI are justified.
plates 92-94 which ―can clearly
505. Though bias and mala fides were sought to be
be associated the Islamic architecture on stylistic attributed to the ASI during
ground‖. Hence, the ASI report
the course of the proceedings before the High
delineated those architectural recoveries which Court, Ms Arora, learned Senior
belong to Islamic architecture of
Counsel has specifically submitted that no case to
the sixteenth century. Even taking the opinion of that effect is being pressed in
DW 20/5 and PW 32 that the
the present appeals. In fact, when Mr Vaidyanathan
recoveries may also be consistent with a palace or a attributed a submission of
Buddhist and Jain
bias or mala fides to Ms Arora with respect to the
structures, the noteworthy point that emerges is that task undertaken by the ASI, Ms
those fragments are of a
Arora intervened to state that she had not made any
non-Islamic origin (except for those specific submission to that effect.
artefacts which have been identified
One of the criticisms of the ASI report is that no
to be of an Islamic origin by ASI, as noted above). analysis was made of the

Once this is the position, the ASI report has to be recovery of bones and that thermoluminescence
read and interpreted in its dating of pottery was not carried

entirety. It would be unfair to reject the conclusions out. Justice Agarwal has noted that an analysis of
which have been arrived at by the bones would have been

PART N instructive if they were recovered from the regular

layer. However, in this case,
589
they have been recovered from a filling and hence
an expert team which carried out the excavation were held to ―lose significance
under the orders of the High
and importance‖. It also appears that the facility for
Court and has carefully analysed the recoveries thermoluminescence dating of
from distinct perspectives. Yet
pottery was not available at the Institute at
the report must be read contextually, allowing for Lucknow and since charcoal samples
genuine divergences that arise
PART N
on matters of interpretation.
590
The formulation of conclusions by the ASI was
preceded by a careful analysis of were available for C14 dating, further analysis of
the pottery was not carried out.
the excavated materials. Individually, a different
view may be possible in respect This explanation apart, the deficiency is not
sufficient to discredit the report in its

343
entirety. by Denning, LJ in Bater v Bater296,where he
formulated the principle thus :
The standard of proof
―So also in civil cases, the case must be proved by
506. The court in a civil trial applies a standard of a preponderance of probability, but there may be
proof governed by a degrees of probability within that standard. The
degree depends on that subject matter.‖ (Emphasis
preponderance of probabilities. This standard is
supplied)
also described sometimes as a
The definition of the expression ‗proved‘ in
balance of probability or the preponderance of the
Section 3 of the Evidence Act is in the
evidence. ―Phipson on
following terms:
Evidence‖ formulates the standard succinctly: If
therefore, the evidence is such ―Proved‖ .—A fact is said to be proved when,
after considering the matters before it, the Court
that the court can say ―we think it more probable
either believes it to exist, or considers its existence
than not‖, the burden is
so probable that a prudent man ought, under the
discharged, but if the probabilities are equal, it is circumstances of the particular case, to act upon the
not.294 In Miller v Minister of supposition that it exists.‖

Pensions295, Lord Denning, J (as the Master of Proof of a fact depends upon the probability of its
Rolls then was) defined the existence. The finding of the

doctrine of the balance or preponderance of court must be based on:

probabilities in the following terms :
A. The test of a prudent person, who acts under the
―(1)… It need not reach certainty, but it must supposition that a fact
carry a high degree of probability. Proof beyond
exists; and
reasonable doubt does not mean proof beyond the
shadow of doubt. The law would fail to protect the B. In the context and circumstances of a particular
community if it admitted fanciful possibilities to case.
deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote Analysing this, Y V Chandrachud J (as the learned
possibility in his favour which can be dismissed Chief Justice then was) in Dr
with the sentence, ―of course it is possible, but not
in the least probable‖ the case is proved beyond N G Dastane v S Dastane297 held :
reasonable doubt, but nothing short of that will
―The belief regarding the existence of a fact may
suffice.‖ (Emphasis supplied)
thus be founded on a balance of probabilities. A
294Phipson on prudent man faced with conflicting probabilities
Evidence, 16th Edn. at pgs 154-155 295 (1947) 2 concerning a fact-situation will act on the
ALL ER 372 supposition that the fact exists, if on weighing the
various probabilities he finds that the
PART N preponderance is in favour of the existence of the
particular fact. As a prudent man, so the court
591 applies this test for finding whether a fact in issue
can be said to be proved. The first step in this
The law recognises that within the standard of
296 [1951] P. 35 297(1975) 2 SCC 326
preponderance of probabilities,
PART N
there could be different degrees of probability. This
was succinctly summarized 592

344
process is to fix the probabilities, the second to 507. On the basis of the ASI report, Justice Sudhir
weigh them, though the two may often intermingle. Agarwal entered the
The impossible is weeded out at the first stage, the
improbable at the second. Within the wide range of following findings of fact:
probabilities the court has often a difficult choice to
―4055. The ultimate inference, which can
make but it is this choice which ultimately
reasonably be drawn by this Court from the entire
determines where the preponderance of
discussion and material noticed above, is: (i) The
probabilities lies. Important issues like those which
disputed structure was not raised on a virgin,
affect the status of parties demand a closer scrutiny
vacant, unoccupied, open land; (ii) There existed a
than those like the loan on a promissory note: ―the
structure, if not much bigger then at least
nature and gravity of an issue necessarily
comparable or bigger than the disputed structure, at
determines the manner of attaining reasonable
the site in dispute; (iii) The builder of the disputed
satisfaction of the truth of the issue [ Per Dixon, J.
structure knew the details of the erstwhile structure,
in Wright v. Wright, (1948) 77 CLR 191, 210] ‖; or
its strength, capacity, the size of the walls etc. and
as said by Lord Denning, ―the degree of
therefore did not hesitate in using the walls etc.
probability depends on the subject-matter. In
without any further improvement; (iv) The
proportion as the offence is grave, so ought the
erstwhile structure was religious in nature and that
proof to be clear [Blyth v. Blyth, (1966) 1 AER
too non-Islamic…; (v) The material like stone,
524, 536] ‖. But whether the issue is one of cruelty
pillars, bricks… of the erstwhile structure was used
or of a loan on a pronote, the test to apply is
in raising the disputed structure; and (vi) The
whether on a preponderance of probabilities the
artefacts recovered during excavation are mostly
relevant fact is proved. In civil cases this, normally,
such as are non-Islamic i.e. pertaining to Hindu
is the standard of proof to apply for finding
religious places, even if we accept that some of the
whether the burden of proof is discharged.‖
items are such which may be used in other religions
(Emphasis supplied)
also. Simultaneously no artefacts etc., which can be
The Court recognised that within the standard of used only in Islamic religious place, has been
preponderance of probabilities, found.‖

the degree of probability is based on the subject Justice S U Khan placed no credence on the ASI
matter involved. report. The reasons which led

In State of U P v Krishna Gopal298, this Court the judge to that conclusion are specious. Firstly,
observed: the learned Judge observed

―26. The concepts of probability, and the degrees that the finding that there was evidence of
of it, cannot obviously be expressed in terms of continuity in structural phases from the
units to be mathematically enumerated as to how
tenth Century onward upto the construction of the
many of such units constitute proof beyond
disputed structure is directly in
reasonable doubt. There is an unmistakable
subjective element in the evaluation of the degrees conflict with the pleadings, gazetteers and history
of probability and the quantum of proof. Forensic books. This omnibus finding
probability must, in the last analysis, rest on a
robust common sense and, ultimately, on the has no factual basis. The purpose of the excavation
trained intuitions of the Judge.‖ (Emphasis was to enable an
supplied)
assessment to be made by the court to determine
298(1988) 4 SCC 302 whether the disputed structure

PART N had been constructed on the site of a pre-existing

temple. Whether after the
593
construction of temples by Vikramaditya and till
the construction of the mosque

345
any construction activity had been carried out (ii) The excavation indicates the presence of an
under the disputed structure was a underlying structure below the

matter which could be deduced after the excavation disputed structure;

was carried out at the site.
(iii) The underlying structure was at least of equal,
PART N if not larger dimensions

594 than the disputed structure;

The second reason was that in case a temple had PART N

been demolished for
595
constructing a mosque, the super structure of the
temple ―would not have gone (iv) The excavation of the walls of the underlying
structure coupled with the
inside the ground‖. This again is pure conjecture.
The learned judge then presence of pillar bases supports the conclusion of
the ASI of the presence
disregarded the architectural fragments on the
ground that it is only in the case of of a structure underlying the disputed structure;

a natural calamity that such material ―goes down (v) The underlying structure was not of Islamic
inside the ground‖ and origin;

otherwise, a ruined building would be buried under (vi) The foundation of the disputed structure rests
the ground after centuries. on the walls of the

The judge observed that there is neither any underlying structure; and
requirement nor any practice that
(vii) Artefacts, including architectural fragments
even in the foundation of a temple, there must be which have been recovered
such items which denote the
during excavation have a distinct non-Islamic
nature of the super structure. These observations origin. Though individually,
and findings of Justice S U
some of the artefacts could also have been utilised
Khan are hypothetical and without any basis. in a structure of

The third learned judge, Justice D V Sharma has Buddhist or Jain origins, there is no evidence of the
relied on the findings contained underlying structure

in the ASI report. being of an Islamic religious nature. The

conclusion which has been drawn
508. The conclusions which have been arrived at
by Justice Sudhir Agarwal on by the ASI that the nature of the underlying
structure and the recoveries
the ASI report, as extracted above are worthy of
acceptance. There is adequate which have been made would on stylistic grounds
suggest the existence of
basis in the material contained in the ASI report to
lead to the following temple structure dating back to the twelfth century
A.D. would on a balance
conclusions:
of probabilities be a conclusion which is supported
(i) The Babri mosque was not constructed on by evidence. The
vacant land;

346
conclusion cannot be rejected as unsupported by The High Court dealt with this objection in the
evidence or lying beyond following observations of Justice

the test of a preponderance of probabilities, which Sudhir Agarwal:

must govern a civil trial.
―3990. ASI, in our view, has rightly refrained
Caveats from recording a categorical finding whether there
was any demolition or not for the reason when a
509. Having said this, we must also read the ASI building is constructed over another and that too
report with the following hundreds of years back, it may sometimes be
difficult to ascertain…in what circumstances
caveats:
building was raised and whether the earlier
(i) Though the excavation has revealed the building collapsed on its own or due to natural
existence of a circular shrine, forces or for the reason attributable to some
persons interested for its damage. Sufficient
conceivably a Shiva shrine dating back to the indication has been given by ASI that the building
seventh to ninth century A.D, in dispute did not have its own foundation but it
was raised on the existing walls. If a building
PART N would not have been existing before construction
of the subsequent building, the builder might not
596
have been able to use foundation of the erstwhile
the underlying structure belongs to twelfth century building without knowing its strength and capacity
A.D. The circular shrine of bearing the load of new structure.

and the underlying structure with pillar bases PART N

belong to two different time
597
periods between three to five centuries apart;
The floor of the disputed building was just over the
(ii) There is no specific finding that the underlying floor of earlier building. The existence of several
structure was a temple pillar bases all show another earlier existence of a
sufficiently bigger structure, if not bigger than the
dedicated to Lord Ram; and disputed structure then not lessor than that also.‖

(iii) Significantly, the ASI has not specifically The High Court noted that the floor of the disputed
opined on whether a temple was structure was situated just

demolished for the construction of the disputed above the floor of the earlier building. The ASI
structure though it has report has opined that the disputed

emerged from the report that the disputed structure structure did not have its own foundation and was
was constructed on the raised on existing walls.

site of and utilised the foundation and material of Moreover, the existence of pillar bases has been
the underlying structure. utilised to sustain an inference

The unanswered question of demolition of a larger structure on which the disputed structure
had been constructed.
510. The ASI report has been criticised on the
ground that it fails to answer the The High Court justified the inability of ASI to
come to a specific finding on
question as to whether the disputed structure of a
mosque was constructed on whether an erstwhile structure of a Hindu religious
origin was demolished for the
the demolition of a pre-existing temple at the site.

347
construction of the mosque. The High Court noted of the erstwhile structure was used for the
that when a structure has construction of a mosque, the builder

been constructed several hundred years ago, it is of the mosque would have been aware of the nature
difficult to conclude with any of the erstwhile structure

degree of certainty whether the underlying and its foundation while constructing the mosque.
structure on whose foundations it rests This is an inference which the

had collapsed due to natural causes or whether the High Court has drawn though that is not a specific
structure was demolished to finding which the ASI has

give way to the structure of a mosque. This would returned in the course of its report.
indicate that the existence of
511. Consequently, when the ASI report will be
the ruins of an underlying structure is not reason in placed in balance in terms of its
itself to infer that the structure
evidentiary value in the course of this judgment, it
had been demolished for the construction of a new is crucial for the court to sift
structure which rests on its
between what the report finds and what it leaves
foundations. ASI, as an expert body refrained from unanswered. The ASI report
recording a specific finding on
does find the existence of a pre-existing structure.
whether the underlying structure was demolished The report deduces 17 rows of
for the purpose of the
pillar bases (a total of 85 of which 50 were exposed
construction of a mosque. Assuming that an in sections, in parts or
inference in regard to demolition
whole). The report concludes on the basis of the
could have been made several hundred years later, architectural fragments found at
ASI evidently did not find
the site and the nature of the structure that it was of
specific evidence to suggest that a structure had a Hindu religious origin. The
been demolished for the
report rejects the possibility (urged by the Sunni
purpose of constructing a mosque. The report Central Waqf Board) of the
submitted by ASI is silent on this
underlying structure being of Islamic origin. But
PART N the ASI report has left

598 unanswered a critical part of the remit which was

made to it, namely, a
facet. The High Court, therefore, indicated that
there could be one of two determination of whether a Hindu temple had been
demolished to pave way for
hypotheses: either that the underlying structure had
collapsed due to natural the construction of the mosque. ASI‘s inability to
render a specific finding on this
forces or that its demolition was the work of human
intervention as part of the facet is certainly a significant evidentiary
circumstance which must be borne in
process of building a mosque on its foundations.
Though, the ASI did not venture PART N

to enter a specific finding, the High Court seems to 599

infer that since the foundation

348
mind when the cumulative impact of the entire 600
evidence is considered in the final
vi. OPW 7 Ram Surat Tewari
analysis.
vii. OPW 12 Shri Kaushal Kishore Mishra
512. There is another aspect which needs to be
flagged at this stage and which viii. OPW 13 Narad Saran

will be considered when the question of title is II. Witnesses in relation to Vishnu Hari
evaluated. That issue is whether a Inscriptions:

determination of title can rest on the basis of the i. OPW 8 Ashok Chandra Chatterjee
ASI findings as they stand.
ii. OPW 10 Dr. K.V. Ramesh
Whether the construction of a mosque in 1528 A.D.
iii. OPW 15 Dr. M.N. Katti
(over 450 years ago) on the
III. Expert witnesses – Historians
foundations of an erstwhile religious structure
(dating back to the twelfth century i. OPW 9 Dr. T.P. Verma
A.D.) can result in a finding on the question of title ii. OPW 11 Dr. Satish Chandra Mittal
is a distinct matter. At this
IV. Expert witnesses - Religious matters
stage, it will suffice to note that a determination of
title was not obviously within i. OPW 16 Jagadguru Ramanandacharya – Swami
Ram
the remit of ASI. This is a matter on which the
court will need to draw a Bhadracharya Ji

considered and objective conclusion when it deals V. Expert witnesses – Archaeologists

with the issue of title later in
i. OPW 3 Dr. S.P. Gupta
this judgment.
ii. OPW 14 Dr. Rakesh Tewari
N.10 Nature and use of the disputed structure: oral
evidence iii. OPW 17 Dr R. Nagaswami

513. The plaintiffs in Suit 5 produced nineteen iv. OPW 18 Sri Arun Kumar Sharma
witnesses. A broad
v. OPW 19 Sri Rakesh Dutta Trivedi.
categorisation of these witnesses is indicated
The depositions of the witnesses of fact need to be
below:
analysed to determine the
I. Witnesses on facts:
nature and use of the disputed building. The
i. OPW 1 Mahant Paramhans Ram Chandra Das witnesses have spoken also about

ii. OPW 2 Shri Devaki Nandan Agarwal the basis of their faith about the birth-place of Lord
Ram.
iii. OPW 4 Harihar Prasad Tewari
PART N
iv. OPW 5 Shri Ram Nath Mishra Alias Banarsi
Panda 601

v. OPW 6 Shri Housila Prasad Tripathi The Hindu witnesses

PART N 514. Mahant Paramhans Ram Chandra Das (OPW-

1): Mahant Paramhans

349
Ram Chandra Das was ninety-years old and the Goddesses on the pillars under the dome which
Mahant of All India Shri Panch were worshipped. He stated that

Ramanandi Digamber Ani Akhara and Digamber PART N

Ayodhya Akhara, Baithak. The
602
witness deposed that according to Valmiki‘s
Ramayan, Lord Ram was born in the place below the ―middle dome‖ is the place
where Lord Ram was born, and
Ayodhya. According to him:
this represented the ‗Garbh Grih‘. The witness
―It is mentioned in Valmiki Ramayan that Lord deposed to the importance of
Ram was born in Ayodhya. Description of
Ayodhya has been made in Vedas, Upanishads, in Ayodhya in religious texts. Deposing to his belief,
codes (Samhitas) and in eighteen Puranas, in the witness stated:
Smritis; and in recognized works of Sanskrit
―In this connection, there is a reference in Ram
literature of Bharat. In all these, Ayodhya has been
Charit Manas that ―uttat dishi bahi Saryu pavini
accepted as the birthplace of Lord Ram. This is the
(i.e. Saryu river flows in the North)‖. This is an
same Ayodhya, which exists at present. Lord Ram
authentic statement about the location of Saryu
was born here.‖
river. There is a statement in Ramayan, i.e. Ram
The witness stated that the Skand Puran, in a Charit Manas [Ramcharitmanas] regarding the
chapter relating to the importance importance of Ayodhya that ―Avadh puri mam
puri suhaisini (The city of Avadh is my dear city)‖
of Ayodhya, contains a reference to the birth-place which makes it clear that Ayodhya is the birthplace
of Lord Ram. He stated that of Lord Ram. It has also been mentioned here that
people living here are very dear to me. The place,
the ‗Garbh Grih‘ is at the disputed place where the where a person is born, is called his birthplace. It
idol of Ram Lalla was in has also been mentioned in Valmiki Ramayan that
the land of my birth is dearer to me than Lanka,
existence at the time of his deposition.
which is built of gold, because birthplace is
According to the witness, he came to Ayodhya superior even to heaven.‖
after leaving home when he was
Again, according to the witness:
fourteen to fifteen years of age and since then he
―The faith of Hindus of the entire world over
had seen people seeking
towards Ram Janam Bhoomi Sthal is similar to that
darshan at several places in Ayodhya including at of Muslims towards Kaba. There is only one Ram
Ram Janmabhumi. According Janam Bhoomi temple in whole of the world,
whereas there are thousands of temples of Lord
to the witness, between 1934-1947, no obstacle was Ram.‖
placed in the way of worship
During the course of his examination, the witness
of Lord Ram at Ram Janmabhumi and since the was shown an album
time when he came to Ayodhya,
containing black and white and coloured
he had not seen namaz being offered in the photographs pertaining to the disputed
disputed complex. He spoke of a
site. He identified the figures of lions and a
door of iron bars in the courtyard of Ram peacock and the depictions of Lord
Janmabhumi and of the riots of 1934.
Ganesh, Lord Shankar and of a Nandi:
The witness stated that there were engravings
containing depictions of Gods and ―Picture No. 20 of album of black and white
pictures prepared by the Archaeological

350
Department of Uttar Pradesh and filed in OOS the Sunni Central Waqf Board, on 17 January
4/1989 about the disputed site was shown to the 2000, the witness stated:
witness. The witness, after seeing the picture, said
that there is a figure of a lion on both sides of the ―From the time, I first came to Ayodhya till 1934,
upper part of the gate. Then picture nos. 37 to 42 of I had been going to Ram Janam Bhoomi (disputed
the coloured album was again shown to the place) regularly every day. At that time, I used to
witness. After seeing it, witness said that a picture go to that portion of the disputed place (building)
of peacock has been painted on the northern gate. where pillars were installed. There were two pillars
The picture no. 58 of the coloured album was installed at the eastern gate. I used to have
shown to the witness. After seeing it, the witness ‗Darshan‘ of them also. Statues of Gods were
said that it is about the engraved on those pillars… Two pillars of black
stone were installed inside the main building.
PART N Volunteer: that pictures of Gods were engraved on
stones thereon. There was a statute of Hanumanji
603 on one of the two pillars of eastern gate and the
second statue was a broken one, which was also of
cave temple. The statues of Ganesh and Shanker,
some God or Goddess. There was a wall of iron
which are installed on the eastern-southern corner
bars after the main gate and there were three gates
of the platform (Chabutra), have been shown in
thereafter in the main building and pillars of black
these pictures. The above pictures include the
stones were installed in all the three gates.‖
picture of Nandi and Lord Shanker also. After
seeing picture no. 61 of the coloured album, the PART N
witness said that it is a picture of above –
mentioned Gods.‖ 604

The witness deposed to the inventory made by the The witness alluded to the location of the pillars of
Commissioner after the black Kasauti stones and to

attachment took place under Section 145 and to the the depiction of Hindu Gods and Goddesses on
presence of footprints and them:

other sources of worship including Ramchabutra ―Question:- What was the location of the pillars
(in the outer courtyard). of black stones installed inside? Answer:- There
were four pillars in every gate. There were statues
According to the witness, no Muslim had offered of Gods and Goddesses in the four pillars in the
namaz in the mosque after southern gate. Some of them were clear and some
were not. I cannot say that statue of which God or
1934. Speaking of his belief and faith, the witness
Goddess was engraved on southern gate or any
stated:
other gate. Before 1934, I used to have ‗Darshan‘
―The whole place, being the birthplace of Lord of Garbh Griha‘ situated under the middle
Ram, is a symbol of belief and faith for me.‖ ‗shikhar‘ after Ram Chabutra. Besides, I used to
have darshan of the statues engraved on the pillars
Speaking of the ceremony associated with the and offer ‗tulsi‘ leaves.‖
consecration of an idol (pran
The witness made a distinction between ‗Garbh
pratishtha), the witness stated that a minimum of 24 Grih‘ and the outer platform:
hours and a maximum of 3
―Question :- In addition of disputed building and
days are dedicated to the performance of the the platform outside it, do you consider the land
ceremony. During the course of his adjacent to it as ‗garbh griha‘. By other platform, I
mean the platform outside the disputed building.
cross-examination by Mr Zafaryab Jilani, learned Answer :- ‗Garbh Griha‘ is the place, where Ram
Senior Counsel appearing for Lalla is seated (Virajman) at present. Outer
platform is outside the disputed place.‖

351
According to the witness, the ‗Garbh Grih‘ (iii) The witness spoke of the offer of worship by
represented the birth-place of Lord devotees;

Ram and this was the place where on 23 December (iv) The presence of the iron railing was accepted;
1949, the idol was installed and

after removing it from the Chabutra: (v) The witness alluded to the shifting of the idols
on 22/23 December 1949.
―The place, which I describe as ‗garbh griha‘, is
according to my belief and according to the belief 515. Dr Rajeev Dhavan, learned Senior Counsel
of all Hindus, birth place of Ram Chandra ji. I appearing on behalf of the
consider that place, where on 23rd December 1949
idol was installed after removing it from the Sunni Central Waqf Board, has sought to draw the
chabutara, as birth place and I used to consider that attention of this Court to
place as birth place before installation of the idol
certain contradictions which were elucidated in the
there.
course of the cross
Question :- Can that place, which you describe as
examination which have been catalogued below:
birth place according to your belief, be 10-15 hands
away on either side of the middle dome place? ―a) On December 22/23, 1949, an idol of Lord
Ram appeared in the early hours of the morning.
Answer:- No. The place where the idol is placed, is
After this miraculous development at the place, the
an authentic place and the whole Hindu community
idol installed on Ram Chabutra was removed and
believes in that very place. There is no scope of any
shifted to ‗Garbh Grih‘. (b) Idol of only Ram Lalla
doubt. There cannot be a distance of even two –
was installed at Ramjanma Bhoomi... this statement
four feet in the location of this place.
is in contradiction of the statement made by several
PART N other witnesses who have stated that other idols
were also installed. (c) There was no idol of Ram
605 Lalla below the top when it fell down. This shows
that the demolition of the disputed structure which
The basis of this belief is that Hindus have been was in utter violation of the order passed by
having ‗darshan‘ of this place as Janambhumi
since centuries.‖ PART N

Though an effort was made to elicit from the 606

witness an answer to whether the
this Hon‘ble Court, was also pre-planned, just like
birth-place could be situated at a short distance the desecration on December 22-23 1949. (d) First
away from the middle dome, he states that the whole of Parikrama was under the
‗Garbha Griha‘, later says Parikrama was on the
specifically answered that question in the negative. outer side.‖
The features which stand out
These contradictions do not render the substratum
from the evidence of OPW-1 are as follows: of the evidence on the facets

(i) The witness was in Ayodhya since the age of 14 which have been highlighted above untrustworthy.
or 15 spanning over three The witness was ninety years

quarters of a century; of age when he deposed and had been associated

with the disputed site for over
(ii) The witness spoke of his faith and belief that
the ‗Garbh Grih‘ under the seven decades. His evidence, in regard to the faith
and belief of the Hindus in
middle dome represented the place where Lord
Ram was born;

352
regard to the birth-place of Lord Ram, the sanctity (i) The admission of the witness that he did not
attached to the place under the worship idols and there was

middle dome and the offerings of worship by no puja sthan in his house;
devotees are significant facets of his
(ii) The inability of the witness to state the name of
testimony. the idol or the number of

516. Shri Devaki Nandan Agarwal (OPW–2): Shri times he had obtained darshan in 1984-85;
Devaki Nandan Agarwal
(iii) The statement of the witness regarding his
was eighty years of age when his Examination-in- belief that the ‗Garbh Grih' was
Chief was recorded between 16
situated at that place where the temple had been
and 18 June 2001. The witness was the third demolished was hearsay;
plaintiff in Suit 5 suing as the next
and
friend of the deities. The cross-examination of the
witness could not be (iv) The reference by the witness to the
Janmabhumi temple on the northern
completed upon the death of the witness but Dr
Dhavan stated that nonetheless, side or the disputed site which was bifurcated upon
the construction of a
he is entitled to rely upon the evidence of the
witness. Dr Dhavan has adverted to road by the British administration.

the testimony of OPW2, particularly in regard to Challenge to credentials of the witness

the association between the
517. OPW2, who is the third plaintiff in Suit 5 has
Vishva Hindu Parishad and the Ram Janmabhumi stated in the plaint that he is a
Nyas. Moreover, in regard to
Vaishnavite. In the course of his Examination-in-
the shifting of the idols, Dr Dhavan, in his note of Chief he reiterated that he is a
submissions highlighted the
Vaishnavite and a Hindu and that he was suing as a
following facets pertaining to the evidence of the next friend of the first and
witness:
second plaintiffs in Suit 5 with no personal or
―i. The vigrah of Ram Lalla was seated in a cradle vested interest but an intent of
and installed on Ram Chabutra. This vigrah was
service to the deity. He stated that during 1932-
movable and therefore in accordance with the
1934 whenever he went to the
wishes of the devotees, it was shifted from Ram
Chabutra and installed under the central dome. ii. disputed place with his mother, he saw the worship
Till December 22, 1949, the idols were not inside of the idol of Lord Ram at
the disputed building.
Ramchabutra. According to him, there was a
PART N picture of Lord Ram inside the
607 disputed structure and the priest took flowers and
garlands from worshippers and
iii. There was an idol of Ram Lalla at the Chabutra
which was later placed under the dome in the offered them from a distance. He referred to the
disputed place.‖ presence of the stone pillars at
Besides the above facets, Dr Dhavan relied on: PART N

353
608 deities on the occasion of religious festivals. This
part of the cross-examination
the gate and inside the disputed structure. However,
according to him, as a result must be read in the context of a particular phase of
the life of the witness when
of the locks which were affixed on the gate to the
inner premises of the disputed he carried on business, before he entered the legal
profession. It would be
structure, the police did not allow worshippers to
enter and worship was from PART N

outside the gate: 609

―There were two pillars of touchstone at the gate incorrect to infer from the answers elucidated
of the disputed structure, which were used for its during the course of cross
construction after demolishing the temple which
earlier existed there. There were two similar pillars examination that the witness was not a believer or
also inside the structure, which could be seen from worshipper of Lord Ram. The
a distance. But two locks were affixed on the gate
pleadings in the Suit and his evidence establish the
of the inner premises of the disputed structure and
personal credentials of the
because of them, the police did not allow anybody
to enter inside and worship etc. of Bhagwan Shri witness as a person genuinely interested in the
Ram Lalla, who was Virajman inside, was done deity of Lord Ram.
from outside the gate and nonstop recitation and
chanting of name of Lord was being continuously 519. Harihar Prasad Tewari (OPW-4): Harihar
done in the outer premises.‖ Prasad Tewari was eighty-five

The witness has been candid in admitting that with years of age on the date of his Examination-in-
the locks being placed on the Chief on 1 August 2002. He was

gate of the inner premises, Hindu devotees offered born in 1917, came to Ayodhya in 1938, where he
worship from outside since lived for four years to study

the police did not permit entry into the inner Ayurveda. The witness stated that he used to visit
courtyard. Ram Janmabhumi temple. The

518. Dr Dhavan‘s attempt to discredit the witness witness has been principally relied upon by the
as a person who was not a plaintiffs in Suit 5 in support of the

worshipper is not borne out from the cross- belief that the disputed site was the birth-place of
examination of OPW2. During the Lord Ram. In the course of his

course of his cross-examination, he stated that Examination-in-Chief he stated:

between 1940 and 1952, he
―Ayodhya is an ancient and the holiest Pilgrimage
conducted the business of a brick kiln and worked for Hindus where Parambrahma Parmeshwar
as a contractor while Bhagwan Vishnu incarnated as Sri Ram, son of
King Dashratha. The followers of Hinduism have
undertaking his studies. The witness was candid the faith from the time immemorial that Bhagwan
enough to state that during the Vishnu incarnated at Ayodhya as Lord Sri Ram.
This place is worship-able. Owing to this trust and
time he was carrying on business, he had no time to
faith people used to visit for Darshan and
take interest in religion and
Parikrama (taking round) of Shri Ram Janam
did not worship an idol. However, he spoke about Bhoomi. My family members, my grandfather and
his worship of Hindu religious elderly people, saints and hermits of Ayodhya,

354
during my study there from 1934 to 1938, used to (foot marks) etc. Charan Chinhas were in four
say that Bhagwan Vishnu had incarnated as pairs. According to belief these Charan Chinhas
Bhagwan Shri Ram at this very place and this is Sri were of Ram, Lakshaman, Bharat and Shatrughan.
Ram Janam Bhoomi. Based on this faith and belief All the above things existed on the platform during
I have been going to Shri Ram Janam Bhoomi for 1934 to 38. Worship was performed by the priests
Darshan. After completing my study, whenever I at the platform also. At first the priests did worship
came to Ayodhya I used to go there for Darshan at the Ram Temple Platform and then walked to
invariably. I mostly lived in Sugreev Quila, Ram above platform for worship.‖
Kot, Ayodhya for about last 8-9 years and usually
go to the Ram Janam Bhoomi for having Darshan.‖ The doors leading to what he described as the
sanctum sanctorum were stated to
The witness has spoken about the entry to the outer
courtyard through the two have been closed during 1934-1938. According to
the witness, worship was
gates – Hanumat Dwar and Singh Dwar, the
presence of Sita Rasoi, offered outside the sanctum sanctorum. On the
source of his religious faith, the
Ramchabutra and the Bhandar within. He has
referred to pilgrims visiting in large witness stated that this was not based on any
religious text but having heard
PART N
about the Janmabhumi of Lord Ram ―from an old
610 aged person‖. This is no reason

numbers particularly on the occasion of Chaitra to discredit the genuineness of the belief and faith
Ramnavami and other religious of OPW4. He has specifically

festivals and to parikrama being performed daily by deposed to the regularity with which he visited the
hundreds of devotees. The Janmabhumi to offer worship

witness stated that he had never seen any Muslim PART N

offering namaz within the
611
disputed site. The witness stated:
and this aspect of his evidence has not been shaken.
―During 1934-38, I frequently visited the disputed The witness fairly stated
site to have a Darshan of Bhagwan Ram. Inside the
building at the disputed site there was no idol of that he had not gone within the disputed building
Bhagwan Ram seated, but his photo hung on a wall because it was locked and that
which was visible from the outside of the gate. The
after 1938 while entry was forbidden, arrangement
gate was locked so I had seen that photo from
for darshan was made at the
outside.‖
Chabutra.
The witness has thus admitted that worship was
from outside the locked gate of 520. Shri Ram Nath Mishra Alias Banarsi Panda
(OPW-5): On 6 August
the inner courtyard for Hindu devotees.
2002, when the Examination-in-Chief of the
The witness spoke of the worship in the outer
witness was recorded, he was ninety
courtyard between 1934 and 1938:
one years old. He stated that he was married to the
―There was a door on the north side of the
daughter of Pandit
precincts. This door was known as Singh Dwar.
While going inside Singh Dwar, on left side, on a Ramkrishna Upadhya who was a reputed ―Teerth-
platform there was rolling board (Chauka), Belan Purohit‖. He deposed to having
(rolling pin), Hearth (chulha) and Charan Chinha

355
worshipped at Ram Janmabhumi and of performing (iii) On entering through the main gate called
the parikrama since his Hanumat Dwar, there was a

marriage. Since 1932, he together with his spouse platform towards the south called the Ramchabutra
came to Ayodhya and started on which were placed

managing and looking after the work performed by the idols of and associated with Lord Ram. On the
his father-in-law including of south-eastern corner of

about a hundred ghats which were owned by him. Ramchabutra, there were idols under a peepal tree
The witness stated that on including those of Lord

Chaitra Ram Navami nearly 10 to 15 lakh devotees Ganesh, Lord Shanker and other deities. Inside the
of Lord Ram visited Ayodhya main gate towards the

and after a bath in the Saryu river proceeded for northern side, there was a thatched enclosure
darshan to Ram Janmabhumi, known as the Bhandar or

Kanak Bhawan and Hanuman Garhi. He stated that store in which provisions were stored;
thousands of devotees
(iv) Inside the grill-brick wall towards the west of
visited from villages for seeking darshan at the Ramchabutra there was, what
Janmabhumi. The witness stated
he described as the ‗Garbh Grih‘ temple covered
that the importance of Ayodhya has been described by three domes and it
in the Brahmpuran, Skand
was a matter of belief that the site below the central
Puran and Barahpuran. dome was the birth

Some of the salient aspects of the examination of place of Lord Ram. The witness and other Hindu
OPW-5 are: devotees would seek the

(i) The witness adverted to the two doors providing darshan of Ram Janmabhumi at the site, which was
entry into what he considered to be

described as the Ram Janmabhumi premises. The sacrosanct;

first was Hanumat
(v) Within the same complex was situated the Sita
Dwar from the east and the second was Singh Dwar Rasoi which had a Chauka-
on the northern side;
Belan, hearth and footprints;
PART N
(vi) Inside the domed structure, there were pillars
612 of black touchstone which

(ii) On both corners of the gate of Hanumat Dwar, had images of flowers, leaves and deities. Between
there were black stone 1928-1949, he had

pillars with pictures of flowers, leaves and deities. seen the picture of Lord Ram hanging inside the
Similarly, on the upper ‗Garbh Grih‘ and he

side of Singh Dwar there was a picture of a ‗garud‘ claimed to have seen the idol of Lord Ram until
flanked by lions on 1949;

either side; PART N

613

356
(vii) In the grill-brick wall, there were two doors (c) Antargrahi
which remained locked and
PART N
which were opened by the pujaris of Nirmohi
Akhara. Darshan of the 614

‗Garbh Grih‘ was arranged for the pilgrims from (x) Again, during the course of the cross-
the railing where a examination by Mr Jilani, the witness

donation box was kept; stated:

(viii) Speaking of the worship at the ‗Garbh Grih‘, ―At the disputed premises, I used to have darshans
the following answers were at three places- first, at the Chabutra on the left,
then of the domed (shikhar wale) ‗Garbhgraha‘
elicited during the course of the cross-examination from the railing outside and then north to have
of the witness: darshan of Sita Rasoi.‖

―For entry into the ‗Garbhgraha‘, there were two (xi) The witness stated that between 1928 and
doors in the wall. Below the three shikhars were 1949, two gates in the wall of
the pillars of touchstone. These pillars were similar
to the pillars flanking the Hanumat Dwar. In the the railings were locked as a result of which
‗Garbhgraha‘ was the idol made of black stone of darshan was obtained only
approximated 7‖ – 8‖ height. The idol was made of
from the railings from where offerings of flowers
black stone. It is difficult to say whether it was
were made.
made of touchstone because we used to see it from
outside. This was the idol of Sita and Lord Rama in 521. Dr Rajeev Dhavan has made an earnest effort
one stone. Apart from that I do not remember to discredit the evidence of
whether there was Lord Saligram or not because I
used to see it from outside and it used to remain the witness on the basis of his inability to identify
locked. I had not seen the idol or Rambhakt whether the photographs which
Hanuman Ji inside. The key of the lock used to be
in the possession of the people of Nirmohi Akhara were shown to him pertained to the disputed site.
and whose pujaris would open the lock, close the The witness stated that in
lock, and perform aarti puja and sounded bells and
1990, a monkey caused the collapse of the disputed
bugles. Whenever I went there, the devotees made
building. This answer is
the offerings from outside only and accepted the
‗prasad‘. They would not go in. From 1932 to evidently a figment of his imagination and he did
1949, I saw things happening in the same way.‖ not furnish a true account of the
OPW-5 spoke of the locks on the gate of the inner demolition. The inability of the witness to respond
premises, as noticed earlier. to the photographs shown by
OPW-5 also noted worship being offered from the cross-examiner is certainly one aspect which
outside but according to him, the has to be borne in mind but that
keys were with Nirmohi Akhara. cannot be a ground to discredit the witness. At the
date of his cross-examination,
(ix) During the course his cross-examination by Mr
Zafaryab Jilani, the witness the witness was over 90 years of age and the
contradictions must be viewed
spoke about three types of parikrama namely:
keeping in mind the entirety of the evidence. The
(a) Fourteen Kosi;
explanation of the witness in
(b) Five Kosi; and

357
regard to the collapse of the structure is indeed far- ―At the time of Ram Navmi, lakhs of people had
fetched. However, an overall come to Ayodhya from every nook and corner of
the country. Majority of the pilgrims and visitors to
reading of the evidence would indicate that the Ayodhya come for the darshan of Ram Janam
answers which were elicited Bhoomi and offer prayers there. After having
darshan of Shri Ram Janam Bhoomi, I have seen
during the cross-examination of the witness by Mr
thousands of people doing Parikrama of the entire
Jilani leaves the substratum of
Shri Ram Janam Bhoomi premises from outside. I,
the Examination-in-Chief of the witness on the alongwith my father and grand mother also had
nature of the worship by Hindu Parikrama of the entire Shri Ram Janam Bhoomi
premises after darshans. Due to old age, my grand
devotees at the site unshaken. The witness was mother could do Parikrama only once whereas I
conversant with the nature and and my father completed the Parikrama of Shri
Ram Janam Bhoomi five times.‖
manner of worship and there can be no manner of
doubt either about his The salient aspects of his evidence are as follows:

PART N (i) The witness spoke of the close proximity of

Ramchabutra to the railing
615
behind which there was a three domed structure
presence at the disputed site as a worshipper or which according to him
awareness of the modalities
represented the sanctum sanctorum of Ram
followed by the devotees including himself in the Janmabhumi:
course of seeking worship at the
PART N
disputed site.
616
522. Housila Prasad Tripathi (OPW-6): The
witness was eighty years of age ―Right in front of the Ram Chabootra and
Bhandar, there was a wall to the west in which
on 13 August 2002 on the date of his Examination- there were several barred windows and two doors.
in-Chief. His village was 30 to The doors used to remain locked. There was a
building of three shikhars to the west of the wall
35 kilometres from Ayodhya which he visited in
with ironbars in which the place of the central
December 1935 for the first time
shikhar portion is Shri Ram Janam Bhoomi which
when he was between the age of twelve-thirteen. is called Sanctum-Sanctorum, according to Hindu
The witness stated that his tradition, faith and belief. On the basis of this faith
and belief, I also used to go for the darshan and
uncle was receiving education between 1932 and Parikrama of the Shri Ram Janam Bhoomi.‖
1945 at Sanskrit Vidyalaya at
The close-proximity of Ramchabutra with the grill-
Ayodhya. During this period, the witness came to brick wall is a matter
Ayodhya three to four times a
which will assume importance. The witness noted
year. Thereafter also, the witness stated that he had that the wall was ―right in
visited Ayodhya for the
front of Ramchabutra‖.
purpose of darshan at Ram Janmabhumi. During
the course of his Examination (ii) The witness spoke of the manner in which
devotees would enter the
in-Chief, the witness spoke about darshan at Ram
Janmabhumi: courtyard and proceed for darshan:

358
―All the pilgrims – darshanarthees would enter the (iii) In front of the eastern gate, there was a wall
Sri Ram Janam Bhoomi premises from the entry with iron bars in which
gate to the east and have darshans of the idols
placed at Ram Chabootra, of the idols placed under there were two doors. Inside the door and below
the neem and peepal tree located to its south-east the dome was the
corner and Sita Rasoi and the foot prints etc., there
sanctum sanctorum. There was a photo of Lord
and also have darshan of sacrosanct Sri Ram
Ram inside the
Janam Bhoomi located inside the barred wall which
is considered to be the Sanctum-Sanctorum.‖ sanctum sanctorum. However, the witness had not
himself seen any
(iii) The witness deposed to the presence of the
black stone pillars within the aarti being performed inside the sanctum
sanctorum; and
three domed structure and of the carvings of deities
on them. The space of (iv) No Muslim would approach the premises out
of fear of the sadhus
the sanctum sanctorum represented, according to
the witness, the place of and bairagis.
birth of Lord Ram: Based on what he perceived to be contradictions in
the identification by the
―In the Sanctum-Sanctorum located in Sri Ram
Janam Bhoomi, there were black pillars of witness of certain photographs, Dr Rajeev Dhavan,
touchstone on which drawn the pictures of flower- in his written submissions
leaves and Gods and Goddesses. The temple with
shikhars is the sacred SanctumSanctorum whereas criticised the testimony of the witness. He has also
per the ancient belief, Lord Ram was born… The adverted to the statement of
touchstone (black stone) pillars were fixed at the
doors of Garb Griha. The Hindu pilgrims also used the witness that Ram Lalla had made his
to have the darshans of the idols drawn on those appearance under the middle dome in
pillars.‖
1949. The witness also offered some explanation of
PART N the damage that was done to

617 the building in 1934. These contradictions cannot

lead to the discrediting of the
(iv) During the course of his cross-examination,
certain material statements witness or his entire testimony on the nature of
worship by Hindu devotees at the
were elicited from the witness, some of which are:
site. There is no reason to doubt the statement of
(i) Between 1935 and 1949, when he went to the the witness that he was a
Ram Janmabhumi,
regular visitor and a worshipper at the site. His
he had darshan of Lord Ram at all the religious testimony in the Examination-in
places like
Chief on the nature and site of worship has not
Ramchabutra, Sita Rasoi and the main sanctum been shaken in the course of the
sanctorum;
PART N
(ii) At the sanctum sanctorum, darshan was
obtained from outside the 618

iron bars and prasad would be placed near the iron cross-examination. The discrepancies which have
bars; been noticed by Dr Rajeev

359
Dhavan are certainly not of a nature which would ―Twelve pillars of Kasauti (touch stone) were
cast doubt on the substratum of erected inside and outside the main gate of middle
dome of the three-domed
the deposition on the above aspects.
PART N
523. Ram Surat Tewari (OPW-7): The witness was
seventy-three years old on 619

the date of his Examination-in-Chief which is 19 building inside the lattice wall and on those pillars
September 2002. His village was a ghatpallav, flowers and petals and the idols of
Hindu Gods and Goddesses were inscribed and
situated 8 kilometres from Ayodhya. The witness among them the faces of idols, hands and their legs
stated that he visited Ayodhya were scratched.‖

for the first time in 1942 during the summer when 524. Kaushal Kishore Mishra (OPW-12): The
he resided with his brother who witness was seventy-five years

was in service there. Thereafter, he visited of age on 19 September 2002, the date of the
Ayodhya four to five times each year. Examination-in-Chief. A resident of

The witness has specifically adverted to the pillars Ayodhya, the witness is an Acharya and belongs to
of black stone on either side of a family of priests. Since the

Hanumat Dwar and to the carvings of stone: age of fourteen or fifteen, the witness stated that he
was performing worship at
―On both the sides of Hanumat Dwar, pillars were
erected of black touch stone on which flowers, Ram Janmabhumi. During the course of the
petals and human images were engraved. Human Examination-in-Chief, the witness
images looked like Dwarpal and their faces
appeared scratched. My brother had told that the stated that lakhs of people gathered there for
idols were of Jai and Vijay.‖ worship on the occasion of festivals

In the above extract, the witness adverts to images when they would visit Ramchabutra, Sita Rasoi and
which resembled dwarpal the sanctum sanctorum

(gatekeeper) and of Jai and Vijay. Like the other where Lord Ram was born below the middle dome
witnesses, OPW-7 spoke of the of the three domed structure.

fact that devotees would have darshan at The devotees would also perform a parikrama. The
Ramchabutra and then proceed witness also stated that no

through the lattice wall for obtaining darshan of the Muslim of Ayodhya came near the premises of
‗Garbh Grih‘. The witness Ram Janmabhumi for the purpose

deposed that above the Singh Dwar, there existed of prayer and there was no offering of namaz.
two statues of lions, and
According to the witness, there were idols of Ram
between them of garuda. He also stated that a Lalla and Shaligram on the
statue of varah (a boar) was
Chabutra where offerings were made. Bairagis and
installed on the southern wall of the main entrance sadhus also lived there, and
gate. The witness spoke of
they belonged to Nirmohi Akhara. Prasad for the
twelve pillars of Kasauti stone inside and outside deities was prepared in the
the main gate of the middle
store of Nirmohi Akhara and a priest was also
dome: appointed to look after the Ram

360
Mandir and Sita Rasoi. The witness spoke about the building. During 1934-1949, some people made
the two doors at the outer their offerings outside at

courtyard and the grill-brick wall separating the Ramchabutra; others gave it to a priest near the iron
disputed building and the outer wall gate due to the rush of

courtyard. Both the doors of the wall with bars the people while some people would go inside to
would be opened and the witness make their offerings. The priest

stated that he would go through the gate to worship sitting in the platform below the middle dome
the idol of Lord Ram. accepted the offerings. In response

Though, the witness stated during the course of his to the question as to how aarti and bhog was
Examination-in-Chief that he offered between 1934 and 1949

PART N when there was no idol, the witness stated:

620 ―Question : - From 1934 to 1949 there was no

idol below the dome, to whom the Aarti, bhog etc.
accompanied his father and grand-father to Ram offered? Answer : - The importance of the disputed
Janmabhumi and saw the building, the pictures on the Calendars, mental
worship and meditation were such things for
pilgrims praying below the middle dome of the
which worship, bhog, recitation, Aarti were
disputed structure in the sanctum
performed.‖
sanctorum, in the course of his cross-examination,
PART N
he stated that in 1934, he did
621
not go inside the disputed building but only upto
Ramchabutra. However, since The witness however accepted that there is no other
public temple lacking an idol
1934, he claimed to have been going inside the
three domed building. He in the sanctum sanctorum. According to him, the
idol of Ram Lalla was placed
claimed that there were two iron doors to enter the
building; one of which on the before the middle dome of the disputed building
during the night of 22/23
North was always kept open. According to him, in
1949 there was no idol inside December 1949. According to the witness, prior to
1949, the north side door to
the building with domes but only a calendar was
put up on the platform the disputed structure was opened while the
southern door remained closed,
constructed below the middle dome. According to
the witness, he performed keys being in the custody of police. Hence,
between 1934 and 1949, he entered
worship inside the building when there was no rush
but when there was a rush of the disputed structure below the dome only through
the north door. Between
people, worship would be performed outside near
the Ramchabutra. However, he 1934 and 1949, the police was deputed there as the
crowd began to increase
took devotees inside the disputed building for
worship after 1949 and not before and the southern door was kept locked. According
to him, it was during 1934-49,
it. Between 1949 and 1986, he took oral permission
from the receiver to go inside

361
that he visited the disputed structure below the Mohd Hashim (PW-1): The witness was seventy-
middle dome and made offerings five years old when his

to the photo of an idol in a calendar. statement was recorded in July 1996. He worked as
a tailor by profession and
525. Narad Saran (OPW-13): The witness was
seventy-six years old on the was a resident of Mohalla Kothia at Ayodhya. The
witness stated that his
date of his Examination-in-Chief which was on 27
January 2003. He came to residence was three furlongs away from the
disputed site and he went to offer
Ayodhya in 1946 and after the death of his Guru,
he succeeded him as the namaz in Babri Masjid for the first time in 1938.
The witness stated that at that
Mahant to Saraju Kund in 1979. The witness has
accepted that the idols were time, Friday namaz used to be performed in the two
mosques but Taravi namaz
shifted from Ramchabutra to the place below the
central dome on the night (special prayer/namaz performed after Isha namaz
during the pious month of
between 22/23 December 1949. He was confronted
with photographs of the Ramzan) used to be performed only in Babri
Masjid. The witness claims to have
inscription containing the word ―Allah‖.
According to the witness, the inscriptions read the last namaz at the disputed site on 22
December 1949 and was
were leaves and flowers only. He accepted that
where Allah is written, the wall thereafter prevented from accessing and offering
prayers at the site by
cannot be a wall of the temple. The witness could
not confirm as to whether government officials. The witness stated that
pursuant to the order of attachment,
Muslims had offered namaz in the disputed
building on the dates that he did not he and many others attempted to offer namaz but
were prosecuted for
visit it. The witness spoke about the belief of the
sanctum sanctorum being below committing a breach of Section 144 CrPC and they
were sentenced to two
the middle dome. The witness deposed that there
were Kasauti pillars on either months‘ imprisonment with a fine of Rs 50/-.
During the course of his statement,
PART N
the witness deposed that Ganj-E-Shahidan was in
622 the east of the disputed site.

side of the gate at Hanumat Dwar with the idols of On the northern side there was a road and beyond
Jai and Vijay engraved that was a Janmasthan

thereon. temple with a signboard marking the Janmasthan.

On the southern side of the
The Sunni witnesses
PART N
526. The plaintiffs in Suit 5 have relied upon the
account of Sunni witnesses as 623

strengthening their case. The following Sunni disputed site was a graveyard. There was a gate
witnesses were relied upon: each on the northern and

362
eastern sides of the disputed site and the entry was that pilgrims from outside India also visited the
mostly from the eastern gate. Janmasthan temple for darshan

On entering from the eastern gate there used to be a on the occasion of festivals and temporary shops
Chabutra whereupon for selling offerings like flowers,

sometimes the priest used to sit. Near the northern garlands and batasha were set up for the pilgrims.
gate of the mosque there was The witness stated that he had

a ‗Chulha‘ called Sita Rasoi. According to the PART N

witness, there was a wall in front of
624
Sita Rasoi and when the crowd used to increase,
the northern gate used to be seen the Hindus doing the Panchkoshi and
Chaudhakoshi parikrama around the
opened for passage. The northern and eastern gates
were surrounded by a disputed property since his childhood and that the
practice was being followed for
boundary wall. There was another wall of the
mosque where there was a main hundreds of years. The witness after seeing
photograph nos 45, 46 and 54 and A
door which was locked. This lock was put on the
date when the mosque was 2/41 of the Kasauti pillars stated that the figurines
or the carvings on the pillars
attached. The witness stated that no idols were
placed inside the disputed site were of Hindu Gods and that the pillars that were
visible at the eastern main gate
upto 22 December 1949 and no worship was ever
performed inside the three were similar to the ones used in the dome. The
witness confirmed that the stone
domed structure.
pillars remained intact till the destruction of the
The witness was cross-examined initially on 24 disputed premises in 1992. In
June 1996. During the course of
response to a question whether a Muslim would go
his cross-examination, the witness stated that the to offer namaz in a place
disputed site which was
where there are pictures of Gods, Goddesses or
attached on 22/23 December 1949 was called Ram flowers, the witness responded
Janmabhumi by Hindus and
that it was prohibited to offer namaz before a
Babri Masjid by the Muslims. He stated that the picture of a God.
Janmasthan temple was the Ram
527. Haji Mehboob Ahmed (PW-2): was fifty-
Janmabhumi temple and even in the Suit of 1885, eight years old when his
the disputed site was referred
statement was recorded in September 1996. He was
to as the Ram Janmabhumi. During the course of a resident of Tedhi Bazar,
his cross-examination, the
Ayodhya and his house was situated about three
witness further stated that as Ayodhya is furlongs away from the disputed
considered to be the birth-place of Lord
site. He stated that he had offered namaz in the
Ram, it is as important for Hindus as Mecca is for disputed site hundreds of times
the Muslims. He further stated
and besides the Friday namaz he used to offer
namaz five times till 22 December

363
1949. The witness stated that he never saw any structure, but no images of Gods and Goddesses
worship or puja being performed were engraved on them.

by the Hindus inside the disputed site. The witness According to the witness, images of flowers and
was cross-examined initially leaves in the shape of flowerpots

on 17 September 1996. During the course of his were carved on them. The witness was first cross-
cross-examination, the witness examined on 29 November

referred to the grilled wall that joined the boundary 1996. During the course of his cross-examination,
wall of the three domed the witness stated that the

structure and stated that the structure was Hindus believed that the disputed structure was the
considered to be a mosque by the birth-place of Lord Ram and

Muslims and a mandir by the Hindus. The witness they considered it as a sacred place of worship. The
stated that just as Ayodhya witness further stated that it

was a place of pilgrimage for the Hindus, similarly, was wrong to assume that demolishing a temple or
it was for the Muslims and an idol was not an offence

they referred to it as ‗Khurd Mecca‘. He stated that according to the Quran. The witness deposed that
the parikrama used to take no Muslim was allowed to

PART N demolish a temple built at a particular place and

construct a mosque over it and if
625
any person could prove a mosque was built upon
place in the winters and those performing the destruction of temple, it
parikrama also used to visit the temple
would not be a valid mosque.
for darshan. The witness was unable to determine
whether the pillars were made 529. Hasmat-ulla-Ansari (PW-7): He was sixty-five
years old when his
of stone or Kasauti stone. The witness denied the
existence of idols and other statement was recorded in December 1996. He was
a resident of Mohalla
symbols of the temple shown in photograph nos 29
and 30 and stated they were PART N

not there at the time when he went to offer namaz 626

at the disputed site.
Kaziana, Ayodhya and was a typist. The witness
528. Mohd Yaseen (PW-4): He was sixty-six years stated that the disputed
old when his statement was
structure was a mosque and that he had first offered
recorded in November 1996. He was a resident of namaz there in 1943 and
Mohalla Raiganj, Ayodhya and
thereafter till 1949. He also claimed that the
was a shoemaker. The witness stated that the disputed structure was never a
disputed structure was used for
temple and no Hindu offered worship there till 22
offering namaz and he had been continuously December 1949. The witness
reading Friday prayers at the
was first cross-examined on 5 December 1996.
disputed site. He stated that there existed black During the course of his cross
stone pillars in the disputed

364
examination, he stated thus: Hindus and that he was aware of Panchkoshi Marg
and Panchkoshi Parikrama.
―A Fair in Shravan is held here. Fair at the Mani
Parbat and another fair at Vashishtha Kund is also He stated that the disputed site was at a distance of
organised. There is Ram Navami Fair in the month 300 metres from Panchkosi
of Chaitra. It is said that Ram Navami Fair is
organised on the occasion of birthday of Lord Marg and all the famous temples of Ayodhya
Rama. On this occasion, people from outside also including the disputed site were
come to Ayodhya. During the days of our
situated within the Panchkosi Marg. According to
childhood thousands of people from outside used to
the witness, during the month of
come. These days lakhs of people come.
Parikramas are also organised there. Of the two Kartik, a grand festival was organised in Ayodhya,
parikramas one is Panchkosi and another is shops were set up and lakhs
Chaudahkosi. Hindus come from different places
and they perform Parikramas also on this occasion.‖ of pilgrims came to have darshan at the Ram
Janmabhumi, Kanak Bhawan and
530. Mohd Qasim Ansari (PW-23): He was
seventy-four years old when he Hanuman Garhi. The witness also stated that the
Chaudahkosi Parikrama was
filed an affidavit in January 2002. He was a
resident of Mohalla Kutia, Ayodhya also performed once a year during the month of
Kartik and lakhs of pilgrims used
and was a motor mechanic by profession. The
witness stated that his residence to take part in it. The witness also referred to the
Ram Navami festival held in the
was situated about three furlongs away from the
disputed site. The witness stated month of Chaitra and the Sawan festival which
attracted lakhs of people to the
that he had recited Fazir Zohar, Asir, Magrib, Isha,
Tarvi and even Zumma city of Ayodhya. The pilgrims used to take a dip in
the river Saryu and have
namaz multiple times at the disputed site.
According to the witness, he recited the darshan at Kanak Bhavan, Janmasthan mandir and
even the Janmabhumi.
last namaz on 22 December 1949 and till the time
he recited namaz, there was According to the witness, during the days of the
festival, Hindus and Muslims co
no idol kept inside the three domed structure and
no Hindus ever prayed at the existed in love and peace.

disputed site. The witness was first cross-examined 531. Analysing the depositions of the above
on 16 January 2002. During witnesses, the following facets can

the course of cross-examination, the witness stated be gleaned:

that the Hindus considered
(i) Hindus consider Ayodhya as the birth-place of
Lord Ram as their God and believed that Lord Ram Lord Ram. Hindu Shastras
was born in Ayodhya. The
and religious scriptures refer to it being a place of
witness stated that Babri Masjid was referred to as religious significance;
the Janmabhumi by the
(ii) The faith and belief of the Hindus is that Lord
PART N Ram was born inside the

627 inner sanctum or ‗Garbh Grih‘ right below the

central dome of the three

365
domed structure; Ramchabutra was on the left upon which the idols
of Lord Ram had
(iii) What Muslims call the Babri mosque, the
Hindus consider as the Ram been placed. Kirtan was carried out near the
Ramchabutra by
Janmabhumi or the birth-place of Lord Ram;
devotees and saints;
PART N
(c) In one corner of the outer courtyard idols of
628 Ganesha, Nandi,

(iv) The faith and belief of the Hindus that Lord Shivlinga, Parvati and others were placed below a
Ram was born in Ayodhya is fig and a neem

undisputed. Muslim witnesses also stated that tree;

Hindus have faith and belief
(d) There existed a structure with a thatched roof,
in the existence of the Janmasthan; which had provisions

(v) Both Hindu and Sunni witness testimonies for storing food and preparing meals;
indicate that the disputed site
PART N
was being used for offering worship by devotees of
both faiths; 629

(vi) Both Hindu and Sunni witnesses have (e) Outside the disputed premises, in the south-
described the physical layout of the eastern corner, Sita

disputed structure in the following manner: Koop was located at a distance of 200-250 paces;

(a) There were two entrances to the disputed (f) The Northern entrance gate to the disputed site
premises – one from the was Singh Dwar

East through the Hanumat Dwar and the other from above which a pictorial representation of garuda
the North was engraved in

through Singh Dwar. There were on both sides of the centre with two lions on either side. On
Hanumat Dwar entering through Singh

black touch stone (Kasauti stone) pillars with Dwar, Sita Rasoi was accessed, which included a
engravings of flowers, Chauka-Belan

leaves and Hindu Gods and Goddesses. Hindus Choolha, Charan Chinha and other signs of
used to pray and religious significance;

offer worship to the engravings on the pillars. Two and

Hindu witnesses
(g) To the West of Ramchabutra, there was a wall
spoke about the ‗Jai and Vijai‘ engravings; with iron bars. Inside

(b) Outside the main gate was a fixed stone with the railing was the three domed structure which
the words ‗Janam Hindus believed to

Bhumi Nitya Yatra‘ written on it. On entering be the birth-place of Lord Ram. The Hindus
through this gate, the believed this as the

366
‗Garbh Grih‘ which was considered a holy and Hanumangarhi. Pilgrims would perform a
revered place. There customary circumambulation

existed black Kasauti stone pillars in the three around the disputed premises; and
domed structure. The
(ix) Both Hindu and Muslim witnesses have
witnesses stated that the pillars had engravings of referred to Panchkoshi and
flowers, leaves,
Chaudahkosi Parikramas that were performed once
Gods and Goddesses on them; a year during the

(vii) A pattern of worship and prayer emerges from month of Kartik, which attracted lakhs of pilgrims
the testimonies of the to the city of Ayodhya.

witnesses. Upon entering Hanumat Dwar, the The areas of dispute

Hindus used to offer prayers
532. From the testimony of the Hindu and Sunni
and worship the idols of Lord Ram placed upon the Muslims witnesses, there
Chabutra in the outer
appear three significant areas of dispute:
courtyard followed by the idols placed below the
fig and neem tree. (i) The first is about the presence of idols under the
central dome of the three
Prayers were offered at the Sita Rasoi and then
pilgrims used to pay domed structure, which was a part of the Babri
mosque to the Muslims and
obeisance to the ‗Garbh Grih‘ located inside the
three domed structure, the ‗Garbh Grih‘ to the Hindus. The oral accounts
contain isolated
while making their offerings standing at the iron
railing that divided the references to the presence of a calendar bearing a
photograph of the idol
inner and outer courtyard. The Hindus performed a
parikrama or and of worship being offered to this pictorial
representation. The Hindu
performed circumambulation of the Ram
Janmabhumi; witnesses have however accepted that the idol of
Lord Ram was shifted
PART N
into the inner courtyard, below the central dome on
630 the night between 22

(viii) Both Hindu and Muslim witnesses stated that 23 December 1949. The possibility of any idol
on religious occasions and under the central dome prior

festivals such as Ram Navami, Sawan Jhoola, PART N

Kartik Poornima, Parikrama
631
Mela and Ram Vivah, many Hindu pilgrims from
across the country visited to 22-23 December 1949 stands excluded on a
preponderance of
the disputed premises for darshan. Worshippers
used to take a dip in the probabilities;

Saryu river and have darshan at Ram Janmabhumi, (ii) Second, there are variations in regard to the
Kanak Bhawan and statements of the Hindu

367
witnesses on whether and, if so the nature of the N.11 Photographs of the disputed structure
prayers, that were offered
The report of the Commissioner dated 3 August
inside the inner sanctum prior to 22-23 December 1950
1949. While some
533. The judgment of Justice Sudhir Agarwal
witnesses have stated that they had entered the records that there are three sets
disputed structure for
of albums containing photographs taken by the
offering prayers below the central dome, other State Archaeological Department
witnesses have stated that
pursuant to an order dated 10 January 1990. Dr
prayers were being offered only at the railing Rakesh Tewari (OPW-14) who
separating the inner and the
was the Director of the State Archaeological
outer courtyards. The case that prayers were Department verified the
offered at the railing is
photographs. Among them, one album of coloured
inconsistent with the claim that prayers were being photographs containing 204
offered inside the three
photographs was marked as paper No. 200 C1/1-
domed structure by the Hindus between 1934 and 204. The second album of black
1949. According to the
and white photographs contains 111 photographs
Muslim witnesses, no prayers were being offered and was marked as paper No.
inside the three domed
201 C(1)/1-111. The albums contained photographs
structure by the Hindus; and of the Kasauti stone pillars

(iii) Third, there is a variation between the and other features of the disputed structure.
statements of the Hindu and Muslim
Dr Rajeev Dhavan, learned Senior Counsel
witnesses on whether namaz was offered inside the appearing on behalf of the Sunni
three domed structure
Central Waqf Board, has placed reliance on the
of the mosque between 1934 and 1949. The report dated 3 August 1950
Muslim witnesses
submitted by Mr Basheer Ahmad Khan, pleader
consistently deposed that namaz was being offered commissioner in Suit 1. The
and that the last Friday
report contains thirteen photographs. Paragraphs 1
prayers were offered on 22 December 1949. On the and 8 to 10 of the report
other hand, according
contain an explanation about photographs 1, 8, 9
to the Hindu witnesses, no Muslim offered prayers and 10. Photograph 1 depicts
at the three domed
the word ‗Allah‘ inscribed in Arabic above the
structure and if anyone ventured near the premises, arch of the main gate outside the
they were made to
disputed structure. The Commissioner‘s report
leave out of the fear of the sadhus and Bairagis in states:
the neighbourhood.
―1. Photo No.1 is the Photograph of the disputed
PART N building from outside, of the main entrance. A little
above the arch of the main gate towards the right
632 and left there are small circles in which the word
"Allah" is written (inscribed) in Arabic. A little

368
above it there now hangs a picture of Hanumanji. mimber there is a Persian inscription which is
(Beneath the frame of the picture 'Allaho Akbar' is blurred in the Photo.‖ (Emphasis supplied)
inscribed in the wall in the Arabic character). This
inscription has been covered by the said picture and PART N
therefore it is not
634
PART N
Finally, in respect of the photograph nos 11 and 12,
633 Commissioner‘s report

visible in the Photograph, and as the photo of this contains the following observations:
portion could not be taken without the removal of
―11. No.11 is the Photo of the inner Northern
the Picture of Hanumanji, I am making it clear in
Arch in the West wall towards the North of No.10.
my report. I did not insist on the removal of the
The calligraphic Allah in the Arabic character is
Picture with a view to avoid any trouble or ugly
inscribed in the wall. 12. No. 12 is Photo of the
situation that might have arisen.‖ (Emphasis
Southern Arch in the Western wall from inside the
supplied)
building with similar Arabic inscription of Allah as
534. Photo 8 contains three inscriptions of ―Allah‖ in No.11.‖ (Emphasis supplied)
in Arabic characters. It is
Photo 13 contained a depiction of the Vazoo or
taken from the courtyard of the building of the place of ablution. In the
middle arch in the eastern wall.
photographs which have been annexed to the report
The Commissioner‘s report states: of the Commissioner dated

―8. No.8 is Photo taken from the Courtyard of the 3 August 1950, the inscription of Allah appears, as
building in suit of the Middle Arch in the eastern stated above, in several
wall. A little below the top of the arch at three
places. Among them, in photograph 10, the
places ―Allah‖ in Arabic character is inscribed.
inscription is not visible upon the
Below the ‗Allah‘ in the middle, the inscription
‗Toghra‘ (...) is blurred in the photo (but at the spot idols being placed at the pulpit. The Commissioner
it can be read).‖ (Emphasis supplied) has also noted that there is a
Photograph 9 was of the inner central Mihrab in the Persian inscription which is blurred in the
western wall. Of this, the photographs. Similarly, the
Commissioner states: Commissioner also noted that the inscription in
photograph 1 was not visible
―9. No. 9, is a Photo of inner Central Mehrab
(Arch) in the western wall of the building in suit. since it had been covered by the photograph of a
On the top of the arch Caligraphic Allah in Arabic Hindu idol. The Commissioner
character is inscribed in the wall and below it
"Bimillah-hirrahman-irrahim" and still below it found that the inscription in photograph 8 was
"Iailaha-illahah Moammadur Rasulullah" is blurred but could be read at the
inscribed.‖ (Emphasis supplied)
spot. Be that as it may, during the course of the
Photograph 10 was of the mimber or pulpit in hearing, we have noticed with the
respect of which the
assistance of the learned Counsel the inscription of
Commissioner‘s report states: ‗Allah‘ in photograph 9 and in

―10. No.10 in the Photo if the pulpit (Mimber) on photographs 11 and 12.
which the idols are placed. On the left side of the
535. Turning to the albums of coloured and black
and white photographs, there

369
is in photograph 40 of the coloured album, an black Kasauti stone pillars have carved engravings,
emblem of two lions flanking the many of which have been

garuda on either side above the entry door. The smeared with vermillion colour. Some of the
album of coloured photographs images on the black Kasauti stone

contains, among other things, depictions of the pillars have been desecrated. Among the witnesses
black Kasauti stone pillars. who deposed in connection

Justice Sudhir Agarwal has recorded a reference to with the photographs was Dr T P Verma (OPW
them as well as to the album 3/5) who became the next friend

of black and white photographs in the following of the first and second plaintiffs in Suit 5 after the
extract: death of Shri Deoki Nandan

PART N Agarwal. Dr T P Verma deposed that the places

where vermillion has been
635
applied may be images of idols, but he was not able
―3435. There are three sets of albums which to specifically state whether
contain photographs taken by the State
Archaeological Department pursuant to order dated it was a picture of Yaksha –Yakshini or Jai-Vijay.
10.01.1990 passed by this Court. Dr. Rakesh Since the testimony of Dr T P
Tiwari, OPW-14 was Director of State
Archaeological Department who deposed statement Verma has been emphasized by Dr Dhavan during
as OPW 14 and verified all these photographs. One the course of his arguments,
album which the learned counsel for the parties
we extract the relevant part:
have termed as "Album of Coloured Photographs"
contain 204 photographs and has been marked as PART N
Paper No.200 C1/1-204. The second one contains
111 photographs which are black & white and the 636
parties counsels have commonly call it "The Album
of Black & White Photographs" and it is Paper ―Idols may be present at the places where
No.201 C1/1-111. The relevant photographs of vermillion or red colour has been used in
these pillars in the coloured album are Paper photographs No. 104, 105, 109, 110, 114 and 115
No.200 C1/48, 200 C1/50, 200 C1/51, 200 C1/52, but it is not clearly visible in the photographs as to
200 C1/54, 200 C1/87, 200 C1/104, 200 C1/105, which god-goddess or Yaksha-Yakshini or Jay-
200 C1/109, 200 C1/114, 200 C1/115, 200 C1/141, Vijay are represented therein. The picture of
200 C1/146, 200 C1/147, 200 C1/166, 200 C1/167, Yaksha-Yakshini or JayVijay is not visible at the
200 C1/181, 200 C1/186, 200 C1/187, 200 C1/195, place where colour has been used in the pillars
200 C1/199 and 200 C1/200. Similarly, in the appearing in the rest of the photographs out of the
album of Black & White, photographs, the relevant aforesaid photographs. (page 130-131), I am not
one of concerning pillars are 201 C1/55, 201 able to recognize any god-goddess, Yaksha-
C1/57, 201 C1/76, 201 C1/88, 201 C1/91, 201 Yakshini or Jay-Vijay in the black-white
C1/103, 201 C1/104 and 201 C1/106. All these photographs of these pillars. There is a hazy figure
photos are being appended collectively as above the ‗Ghat alash‘ in photograph No. 55,
Appendix 5 (A) to 5 (DD) to this judgment.‖ which can be of some god-goddess or Yaksha-
Yakshini.‖
536. During the course of the hearing, this Court
has perused the photographs Proceeding ahead, Dr Verma stated:

in the albums which tally with the above ―There are few idols in the coloured portion of
observations of learned Judge. The Photograph Nos. 141, 146 and 147, which may be
of Gods-Goddess but I cannot recognise them. No
idol is visible to me in the remaining photographs.

370
In all these photographs where red colour is not The photographs on the record contain inscriptions
present, I am not able to see the pictures of any of Islamic origin and of
God-Goddess, Yaksha- Yakshini or Jai-Vijai.
images traceable to Hindu forms of worship. Both
I am not able to recognize the idol of any God- co-existed in the disputed
Goddess, Yaksha- Yakshini or Jai-Vijai over the
pillars appearing in these photographs.‖ structure.

On the other hand, other witnesses have 537. Justice Sharma while holding that the pillars
specifically spoken of the presence of contained images of Hindu

Hindu idols in the photographs. Among them are Gods and Goddesses inside the mosque held that
Raghunath Prasad Pandey (DW the disputed structure lacked

3/5), Mahant Dharam Das (DW 13/1-1), Ramesh the character of a mosque under the tenets of Islam.
Chandra Tripathi (DW 17/1) and Justice S U Khan has

Shashi Kant Rungta (DW 20/1). The High Court agreed with the view of Justice Agarwal to the
noted certain contradictions in contrary.

the statements of the witnesses particularly in Issue No. 19(f) in Suit 4 was:
regard to the clarity of the
―Whether the pillars inside and outside the
photographs and the identity of the images. Justice building in question contain images of Hindu Gods
Sudhir Agarwal observed that and Goddesses? If the finding is in the affirmative,
whether on that account the building in question
these variations were normal since the witnesses cannot have the character of Mosque under the
were not experts in the field of tenets of Islam?‖

iconography. Justice Sudhir Agarwal also noted the Justice Sudhir Agarwal came to the conclusion that
testimony of Dr TP Verma despite the existence of

which noticed the images of Gods and Goddesses certain images of Hindu Gods and Goddesses on
in the coloured portions of some of the pillars inside and

photographs 188, 193-195, 189 and 200. However, outside the building in question, the character of
he also stated that he was the structure of a mosque

not able to precisely recognise which Gods or remains unaffected. His view was that though
Goddesses have been represented human or animal images at a place

PART N where namaz is to be offered are not permitted

under Islamic tenets, despite the
637
existence of the pillars containing those images,
having regard to the hazy nature of the images. Muslims treated the building in
After a review of the evidence,
dispute to be a mosque and offered namaz for at
Justice Sudhir Agarwal came to the following least eighty years until the order
conclusion:
PART N
―3443. In view of the above, we have no
hesitation in observing that the pillars fixed inside 638
and outside the building in dispute contain some
human images and at some places there appears to of attachment was issued on 29 December 1949. In
be some images of Hindu Gods and Goddesses.‖ his view, where persons who

371
believe in a particular form of worship treated the theological question was argued by the Hindus to
building as a place of Islamic the effect that the carvings

worship, it was not open to a third party to contend were per se un-Islamic. Dr Dhavan is not right in
particularly after a long time of asserting that there is an

lapse that the building was not a mosque absence of any depiction of Hindu Gods and
constructed in accordance with the Goddesses on the Kasauti stone

tenets of that religion. This aspect of the case has pillars. The evidence indicates a position to the
already been explored while contrary. Dr Dhavan placed

dealing with the submission which was urged by PART N

Mr P N Misra on the tenets of
639
Islam. It is sufficient to note that the evidence on
the record consisting of the reliance on two specific photographs, photograph
nos 128 and 129 of the albums
report of the Commissioner dated 3 August 1950 as
well as the coloured and containing coloured photographs. These
photographs have been placed below
black and white albums of photographs indicate
firstly, the inscriptions of Allah on the inner dome. Dr Dhavan submitted that one of
the photographs is of Guru Dutt
the disputed structure, secondly, the presence of
black Kasauti stone pillars Singh who was a City Magistrate while another
photograph, is of K K Nayyar who
containing some images of Hindu Gods and
Goddesses and thirdly, a depiction was the District Magistrate at the relevant time
when the incident took place in
of a garuda flanked by lions which would appear to
be of a non-Islamic origin. December 1949. According to Dr Dhavan, these
are photographs placed within
Inscriptions of an Islamic religious origin and
engravings of a Hindu religious the structure in 1990 in breach of the order of status
quo that was passed. Dr
character have co-existed on the disputed structure.
They signify that in the Dhavan has drawn the attention of this Court to the
evidence of Mahant Bhaskar
diversity of plural cultures in the sub-continent,
there is underlying it all a Das (DW 13/1) to whom photograph nos 128 and
129 were shown during the
universal truth founded in the essential one-ness of
mankind. course of his cross-examination. Extracts from the
deposition of the witness,
538. Dr Dhavan argued that there was no image of
Hindu Gods or Goddesses tracing the career of K K Nayyar have been relied
upon. On the basis of these
on the Kasauti pillars. He urged that the floral
designs which were found on them photographs, it was submitted that K K Nayyar and
Guru Dutt Singh adopted a
exist in Islamic architecture. The submission is that
decorative engravings and partisan attitude when the mosque was desecrated
in December 1949.
inscriptions do not detract from the character of a
mosque and therefore a We have adverted to the submission of Dr Dhavan
for the completeness of the

372
record and insofar as it has a bearing on the reason ―Lines 13-14, verse 19- His nephew (literally
which may have led to the brother's son), the widely celebrated Meghasuta,
the illustrious one, who superseded Anayacandra;
installation of the photographs of two public he earned the lordship of Saketamandala through
officials of the State government in the grace of his elder, the Lord of the earth,
Govindacandra. Line 14, verse 20- Not only did
the southern dome of the disputed structure.
he, who was powerful, put an end to the arrogant
N.12 Vishnu Hari Inscriptions warriors who were dancing in unrestrained frenzy
in the battles constantly fought by him, but he also
539. On 7 February 2002, counsel for the plaintiffs gave (to his people) an excellent army which was
in Suit 5 filed a report dated replete with (soldiers comparable to) the wish-
fulfilling trees. Lines 14-15, verse 21- By him,
3 February 2002 before the High Court of Dr K V who was meditating in his mind on the easiest
Ramesh, pertaining to the means of quickly jumping across the ocean of
worldly attachments, was erected this beautiful
―Ayodhya Vishnu Hari temple inscription‖. The
temple of (The god) Visnu-Hari, [on a scale] never
documents were taken on record
before done by the preceding kings, compactly
―subject to objection and proof‖ as required by the formed [i.e. built] with rows of large and lofty
provisions of the Evidence Act stones which had been sculpted out. Lines 15-16,
verse 22- The position of Alhana, whose tireless
1872. During the course of the trial, the plaintiffs of shoulders were like safety latches for the stability
Suit 5 claimed that the above of the king Govindacandra's empire, was
subsequently occupied by his younger (son?)
PART N Ayusyacandra. Line 16, verse 23- Great poets
dared not compare him with Sahasanka and
640
Sudraka; out of sheer fear none save the God of
inscription was recovered on 6/7 December 1992 Love dared draw the bow-string in his presence.
from the debris of the disputed Line 17, verse 24- By him, who was of good
conduct, and abhorred strife, while residing at
structure which was demolished. The inscription is Ayodhya, which had towering abodes, intellectuals
in stone with a dimension of and temples, Saketa-Mandala

115cm X 55cm. Under the orders of the Court, an PART N

e-stampage (paper no. 203 C
641
1/1) was prepared and was deciphered by Dr K V
Ramesh (OPW-10) who is an was endowed with thousands of wells, reservoirs,
almshouses, tanks.‖
epigraphist. The translation of the text was marked
as Exhibit 2 in Suit 5. The Dr Ramesh submitted a report about the
inscription. The report states thus:
case of the plaintiffs is that there was a Vishnu Hari
temple at the site in dispute ―The subjoined stone inscription is engraved on a
rectangular stone slab, the written area roughly
and it was on the demolition of the temple that a covering an area of 115 cms X 55 cms. The slab as
mosque was constructed in its at present extant is diagonally broken in two
leading to the loss of a couple of letters in almost
place. In this segment, the inscription forms the every line. Besides, the first and last two lines have
fulcrum of the submission. suffered heavy damage resulting in the loss of
many letters. All in all, the loss of letters have
540. Material portions of the translation have been
proved a handicap to epigraphists and Sanskritists
adverted to during the
in the matter of fully interpreting the contents of
course of the proceedings and are extracted below: the text. Nevertheless, the overall purport and the
crux of its import are clear beyond doubt. In the

373
first instance a hurriedly prepared estampage, and informs us that he bequeathed his realm and wealth
in recent times, a high quality estampage as well as to his son Sallaksana. Verse 9 to 14 contain
some photographs were all provided by Dr. S.P. conventional praises showered on this Sallaksana
Gupta Chairman, Archaeological Society of India, in which the poet has displayed a high level of
New Delhi for which I am highly thankful to him. poetic imagination. Verse 15 refers to the birth of
his son whose stunning resemblance to his father
The text of the inscription is written in fairly chaste was the talk among the people. Verse 16 refers to
Sanskrit, the orthographical features being regular this son as Alhana and credits him with retrieving
for the period to which the inscription belongs, the past power and glory of his family. While the
namely the middle of the 12th Century A.D. The next two verses (17 and 18) contain his
inscription is not in any way dated, but may be conventional praise, verse 19 gives the information
assigned, with confidence, to the middle of the 12th that his nephew, Meghasuta by name, as
Century on palaeographical grounds as well as the superseding a certain Anayacandra and obtaining
internal evidence provided by the inscriptional text the Lordship of Saketa-mandala through the grace
in question. of the senior Lord of the earth, Govindacandra,
While verse 20 lauds the military might of this
But for the opening salutation to Siva at the very
hero, verse 21 gives the important information that,
beginning, the entire text of the inscription is
in order to ensure his easy passage into the
composed in Sanskrit verse of fairly high literary
heavens, Meghasuta built a lofty stone temple for
excellence. As has been stated above, the
the god Visnu-Hari. From verse 22 we learn that
palaeographical and orthographical features are
he, who was responsible for the stability of
normal for the period to which the inscription
Govindacandra's empire, was succeeded by the
belongs, viz, the middle of the 12th century A.D.
younger Ayusyacandra as the Lord of Saketa-
This was an important period of transition from
mandala. Verse 23 contains his conventional
classical Sanskrit to the North Indian vernaculars.
praise. According to verse 24, he set up residence
This can be easily identified in contemporaneous
in the city of Ayodhya, which was adorned with
inscriptions, including the present one, in the
lofty abodes, intellectuals and temples, and added
confusion in the use of class nasals and anusvara,
to the entire Saketa-mandala thousands of small
and in the employment of the sibilants and palatals.
and big water reservoirs. Verse 25 and 26 contain
As for the contents of the text, it is fully reflective more conventional praises of Ayusyacandra. Verse
of medieval vanity as far as the eulogies of the 27, which is partly damaged, alludes to the well-
heroes mentioned in the inscription are concerned. known episodes of Vishnu's incarnations as
The most important internal historical information Narasimha, Krsna, Vamana and Rama. The badly
we get from this epigraph is the mention of damaged verse 28 refers to a King (probably
Govindachandra, obviously of the Gahadavala Ayusyacandra) as warding off the danger of
dynasty, who ruled over a fairly vast empire from invasion from the west (i.e. from the invading
1114 to 1155 A.D. Verse 1 is entirely lost. Verse 2, Muslim forces). Verse 29, which is incomplete,
which is badly mutilated, refers to Trivikrama and, mentions the king Ayusyacandra.
hence, may have been composed in
The reference to Saketa-mandala is interesting. It is
PART N well known that North India just as in the case of
the South, was divided into administrate divisions
642 called mandalas (see the word mandala in the
indices to H.C. Ray's monumental twovolume work
praise of Lord Visnu. Verse 3, which is also badly 'The Dynastic History of Northern India', II edn.'
damaged, seems to allude to the near-total 1973, Delhi).‖
decimation of the warrior clans by Bhargava-
Parasurama. Verse 4 refers to the emergence of a PART N
Ksatriya family, heroes born in which successfully
resurrected the decadent warrior clans. According 643
to Verse 5, in that noble family was born the
541. While discussing the evidence of the witness,
beloved of the people, Mame. Verse 7 speaks of his
Justice Sudhir Agarwal has
detachment from mundane things while Verse 8

374
noted that the expertise of OPW-10 as an selected by UPSC as Deputy Superintending
epigraphist could not be disputed by Epigraphist for Sanskrit inscriptions

any of the parties. OPW-10 appeared as a witness in 1966. He was promoted and eventually rose to
and proved the translation of become the Joint Director of

the contents of the stone inscription by him. the ASI in 1992 before his retirement on 30 June
According to the witness, the 1993. Dr Ramesh stated that he

inscription would belong to the twelfth century PART N

A.D. and from it, the existence of a
644
Vishnu Hari temple constructed in Ayodhya in
twelfth century A.D. has been was approached by D N Agarwal and his counsel
for deciphering the twenty-line
noted. OPW-10 stated that the expression indicates
that Ayodhya was the stone inscription on the basis of an e-stampage
made available to him, which
headquarters of Saket Mandala. Moreover, while
the temple was constructed by was paper no. 203C-1/1 on the record of Suit 5. He
accordingly made a
Meghasuta, the inscription was written by his
successors. Justice Sudhir Agarwal translation of the e-stampage and handed over the
report to D N Agarwal. During
in the course of his decision has observed that the
genuineness and authenticity the course of his cross-examination, Dr Ramesh
stated that he had seen an
of the inscription could not be doubted though it
was argued on behalf of the additional legible photograph of the inscription in
December 1992 when it was
Muslim parties that the manner in which it was
claimed to have been retrieved brought to him by Dr S P Gupta at Delhi. He also
stated that he had partly
was not trustworthy so as to enter a finding that it
had been affixed in the building deciphered the inscription on his own in his office
at the ASI at Delhi. He stated
at the disputed site prior to its demolition. Hence, it
was urged by them that the that he had once assembled with several other
persons at the office of the Indian
stone inscription by itself cannot be evidence to
hold that a Vishnu Hari temple Archaeological Society which was headed by Dr S
P Gupta. The witness stated
existed or was constructed at the disputed site.
that he was conversant with the inscriptions of
542. Dr K V Ramesh (OPW-10) stated in the Gahadawala Nagri script and that
affidavit in lieu of his Examination
he had seen nearly ten to twenty inscriptions of the
in-Chief that he has an M.A. in Sanskrit Language dynasty published in
and Literature from Madras
Ephigraphia Indica. The witness had written over
University and completed a Ph.D. in History in fifty articles on Sanskrit
1965 from Karnataka University. In
inscriptions found in northern and southern India.
1965, he joined the ASI in the office of the Of them, ten inscriptions
Government Epigraphist and was
belonged to northern India all of which relate to the
period prior or up to the end

375
of the twelfth century A.D. During his cross- (iii) Dr Ramesh had occasion to sit with Dr S P
examination, the witness explained Gupta in the office of the Indian

the basis on which it had been deduced that the Archaeological Society (which is distinct from the
inscription dated to the twelfth ASI which is a

century: governmental body);

―According to me, the period of the inscription in (iv) Dr S P Gupta who is OPW-3 had admitted to
question can be dated back to the 12th Century, and being a member of the RSS
wherever I have used specifically the period around
middle of 12th Century, I meant that it was from before 1975 and hence, bias cannot be ruled out;
about 1130 to 1170 A.D. If once I have used the
(v) Dr Ramesh clarified that at page 9 of his report
period around middle of the 12th Century, it will
in verse 5 – line 4 and 5,
remain the same even if I subsequently refer it to as
12th Century. It is on account of the while making a reference to the noble family, he
palaeographical grounds and the internal evidence has translated Ram
as recited by me in para 2 at page 1 of my report
(Ext. OOS 5-2) that I arrived at the approximate Janmabhumi as the birth-place of valour – meaning
period of the inscriptional text in question.‖ thereby the birth-place

PART N of the Royal Kshatriya family of the dynasty. He

clarifies that the members
645
of this family later became chieftains of Saketa
543. The expertise of Dr K V Ramesh, based on his Mandala during the time of
qualifications and
Meghasuta. This, in the submission, shows that the
experience in the ASI, is a matter of record. Dr reference to Ram
Rajeev Dhavan, learned Senior
Janmabhumi was not to the birth-place of Lord
Counsel appearing on behalf of the Sunni Waqf Ram but to the birth-place
Board, however sought to
of the royal dynasty at the time; and
emphasise the following aspects in regard to the
testimony of Dr Ramesh: PART N

(i) In the translation at verse 27, incarnations of 646

Lord Vishnu are mentioned in
(vi) Verse 27 in para 13 of the report is in praise of
the avatars – Narsimha, Krishna, Vamana and Lord Vishnu and there is no
Ram. Hence, according to
specific mention of Lord Ram.
the submission, no specific importance or focus on
Lord Ram has been 544. In assessing this submission, we must at the
outset note that no cogent
made in the inscription;
basis has been furnished to doubt the qualifications
(ii) Dr Ramesh is not a historian of Northern India and experience of Dr K V
and according to him it is
Ramesh. Dr Ramesh was employed with the ASI
not possible to interpret inscriptions until the for many years and eventually
epigraphist knows
rose to occupy the position of Joint Director
contemporary history; General. He has furnished a

376
translation of the original inscription and has alleged to have been recovered, which shall now be
indicated the basis on which he considered.

deduced that it relates to the twelfth century. He 545. As regards the recovery of the stone
notes that the epigraphists inscription, the plaintiffs in Suit 5

mention Govindachandra who belonged to the relied on the evidence of Ashok Chandra Chatterjee
Gahadavala dynasty and ruled (OPW-8). The witness who

between 1114 and 1155 A.D. Moreover, the chaste is a resident of Faizabad stated that he was a
Sanskrit, orthographical partner in a firm by the name of

features and palaeography confirmed (according to Majestic Automobiles as well as the owner of
Dr Ramesh) that the Majestic Talkies. He claimed to be

inscription belongs to the twelfth century A.D. Dr a reporter with a weekly journal titled
Ramesh also spoke about ―Panchjanya‖ of Faizabad region for over

verses 21 to 24 mentioning the construction of a fifteen years. On the recovery of the stone
lofty stone temple by Meghasuta inscription, OPW-8 stated that on 6

dedicated to Lord Vishnu Hari. He was succeeded December 1992 when the disputed structure was
by Ayusyacandra who, while demolished, he was present at

ruling Ayodhya endowed Saketa Mandala with the the site for the collection of news, on the western
construction of reservoirs. side of the three domed

Verse 27 which has been damaged in part has been structure. When the work of levelling was being
interpreted by Dr Ramesh in undertaken by the Government of

the course of his Examination-in-Chief as follows : Uttar Pradesh on the eastern side of the Ram
Janmabhumi premises, he states
―13. ―Verse 27 (damaged in part) alludes to the
episodes of Vishnu‘s incarnation as Narasimha that some stones were found which appeared to be
(who killed Hirnyakasipu), Krishna (who killed the ruins of the temple. On
Banasura), Vamana (who destroyed Bali) and
Rama (who killed ten-headed Ravana).‖ getting this information, he proceeded to the site
and all the idols including the
Hence, he deduced that the Vishnu temple
constructed by Meghasuta must have ruins of the temple recovered during the process of
levelling were placed in the
been in existence in the temple town of Ayodhya
from twelfth century A.D. We custody of the Ram Katha Museum, Raj Sadan
Ayodhya of the Archaeology
must note at this stage that the authenticity of the
inscription has not been Department of Uttar Pradesh.

challenged. The language on the stone slab is 546. OPW-8 stated that on 6 December 1992 while
Sanskrit of the twelfth century A.D. he was standing behind the

PART N disputed structure, he saw a plaster of a part of the

western wall being broken
647
and stones and bricks of uneven shape and size
The challenge pertains to the place and manner in fitted in the wall. During the
which the inscription was

377
course of the demolition of the structure a slab 547. The testimony of OPW-8 has been challenged
(three and half feet long, two feet by Dr Dhavan on the

wide and six inches thick) fell down. He states that following grounds:
many of the slabs which had
(i) The witness stated in his Examination-in-Chief
fallen appeared to be the ruins of some temple and that he was standing on the
that a saint at the site
western side of the disputed building at the time of
PART N demolition;

648 (ii) In the course of his cross-examination, the

witness stated that he was
informed him that the slab appeared to be an
inscription of an old temple. The standing on the southern side of the disputed
building at the time of
inscription was picked up by the Kar Sewaks who
brought it near the building demolition and that nothing was clearly visible
because of dust;
located at Ram Katha Kunj. The witness stated that
subsequently the police took PART N

custody of the slabs. The witness stated that on 6 649

December 1992, the date of
(iii) In spite of this, he claims to have seen the slab
destruction of the mosque, he got acquainted with containing the inscription
Dr Sudha Mallayya. On 13
falling;
December 1992, Dr Sudha Mallaya contacted him
for his help in inspecting the (iv) He then states that on the day following the
demolition, he went together
slabs which had been recovered during the course
of the demolition. Dr S P with Dr Sudha Mallaya and Dr S P Gupta to obtain
pictures of the
Gupta and Dr Sudha Mallayya accordingly came to
the building located at Ram inscription;

Katha Kunj. The witness stated that on 15 (v) Dr S P Gupta is a member of the RSS prior to
December 1992, a photograph of the 1975 and Dr Ramesh had

inscription was published in the Lucknow edition also mentioned having met Dr S P Gupta;
of the daily by the name of ‗AaJ‘.
(vi) The witness was not able to identify the
During the course of his cross-examination, the pictures of the disputed site,
witness stated that he did not
stating that it was not clear from the photographs
know the place where the slab was exactly fitted in whether this was the
the wall before it fell. He
western boundary since he had visited the place
claimed that the photograph of the rock only once in his lifetime;
inscription / slab was handed over to him
and
at night by someone whom he could not identify.
(vii) Initially, the witness stated that the rock
He also stated that the
inscription shown had fallen from
photograph of the slab was published in
Panchjanya of 13/20 December 1992.

378
the western wall of the southern dome but after 548. Since the recovery of the rock inscription from
seeing the picture, he the disputed structure is not

stated that rock inscription which was available borne out from the evidence, a crucial link in the
after the demolition of the case which has been sought to

structure did not appear to be fixed on the wall. be made out on the basis of the inscription, by the
plaintiffs in Suit 5 is found to
The inconsistencies in the testimony of the witness,
which have been copiously be missing. The rock inscription would indicate the
existence of a Vishnu Hari
analysed by Dr Dhavan, cast serious doubt on the
credibility of the witness, his temple at Ayodhya, having been constructed in
twelfth century A.D. But once the
presence at the site and of his having witnessed the
recovery of the slabs from recovery of the inscription from the site in question
is disbelieved, the inscription
the disputed structure during the course of
demolition on 6 December 1992. The cannot be the basis to conclude that the Vishnu
Hari temple which is referred to
recovery of the stone inscription from the disputed
site following the demolition in the inscription was a temple which existed at the
very site of the demolished
which took place on 6 December 1992 has not been
established. The chain of structure.

custody is not established. The evidence of OPW-8 N.13 The polestar of faith and belief
on the recovery of the stone
549. Setting course through history, the cornerstone
inscription does not inspire confidence. On the one of the edifice for the
hand, reading his testimony, it
Hindus is their faith and belief in the birth-place of
PART N Lord Ram as the incarnation of

650 Vishnu. Their faith is founded principally on the

significance attached to Ayodhya
is evident that nothing was clearly visible to the
witness because of the pall of in the following:

dust which was raised. How he saw a particular PART N

rock inscription or the slab on
651
which it was borne falling defies rational
explanation. In fact, during the course of (i) Religious scriptures, principally the association
of Ayodhya
his cross-examination, the witness stated that:
with the presiding deity of Lord Ram in Valmiki‘s
―Rock inscription /slab which was available after Ramayan,
the demolition of the structure does not appear to
be fixed in the wall.‖ Skand Puran and Sri Ramacharitmanas. Their
submissions
Thus, from the evidence of OPW-8, it cannot be
inferred that the rock inscription / have been embellished in this Court by Mr P N
Mishra
slab was recovered from the disputed site.
(appearing on behalf of defendant no 20 in Suit 5,
Akhil

379
Bharatiya Shri Ram JanmBhumi Punrudhar Vighnesvara, the bestower of all desired benefits…
Samiti), who used (Srimad Skandapuranam II.VIII.10.15-17)

religion and mythology to weave through the warp "To the North-East of that spot is the place of the
and weft of birth of Rama. This holy spot of the birth is the
means of achieving salvation etc. It is said that the
history; and place of the birth is situated to the East of
Vighneswar, to the North of Vasistha and to the
(ii) Travelogues, gazetteers and books.
West of Laumasa. Only by visiting it a man can get
In weaving through the wealth of documents rid of staying (frequently) in womb (i.e. rebirth).
produced before this Court, it is There is no necessity for making charitable gifts,
performing a penance or sacrifices or undertake
necessary to answer both the extent of judicial pilgrimage to holy spots. On the Navami day the
review of faith and belief and the man should observe the Holy vow. By the power of
the holy bath and charitable gifts, he is liberated
evidentiary value of the reliance on travelogues, from the bondage of births. By visiting the place of
gazetteers and books. birth, one attains that benefit which is obtained by
one who gives thousands of tawny-coloured cows
550. The first extract from Skand Puran upon
every day. By seeing the place of birth, one attains
which reliance has been placed is
the merit of ascetics performing penance in
thus: hermitage, of thousands of Rajasuya sacrifices and
Agnihotra sacrifices performed every year. By
―I bow down to the immutable Rama, the seeing a man observing the holy rite particularly in
Supreme Brahman whose eyes resemble lotus, who the place of birth, he obtains the merit of the holy
is as dark-blue as flower of flax (in complexion) men endowed with devotion to mother and father
and who killed Ravana. Great and holy is the City as well as preceptors. (Srimad Skandapuranam
of Ayodhya which is inaccessible to perpetrators of II.VIII.10.18-25)‖
evil deeds. Who would not like to visit Ayodhya
wherein Lord Hari himself resided? This divine and 551. Mr Zafaryab Jilani, learned Senior Counsel
splendid City is on the bank of the river Sarayu. It appearing on behalf of the
is on par with Amaravati (the capital of Indra) and
Sunni Central Waqf Board has a nuanced response
is resorted to by many ascetics. (Srimad
to the submissions which are
Skandpuranam .II.VIII… 29-31)‖
founded in the religious scriptures relied upon by
The Skand Puran, contains an edict for the devotees
Mr P N Misra. Learned Senior
to offer worship to Lord
Counsel argued that:
Ram as a means of salvation. There is a reference
to the place of birth of Lord (i) There is no reference to the Ram Janmabhumi
site either in Valmiki‘s
Ram in another extract:
Ramayan or in Ramacharitmanas, the latter dating
PART N
to 1574 A.D; and
652
(ii) The religious scriptures contain no reference to
―The devotee shall take his holy bath in the waters a Ram Janmabhumi
of Sarayu and then worship Pindaraka who deludes
temple or to the Janmasthan temple.
sinners and bestows good intellect on men of good
deeds always. The (annual) festival should be PART N
celebrated during Navaratris with great luxury. To
the west of it, the devotee should worship 653
Vighnesvara by seeking whom not even the least
obstacle remains (in the affairs) of men. Hence

380
The submission which has been urged is that there ―According to my study and information, the
is no dispute about the faith disputed site at Ayodhya is the birthplace of Lord
Shri Ram and from time immemorial and as per
and belief of the Hindus that Lord Ram was born in traditions and faith, the disputed site is recognized
Ayodhya but the Janmasthan as the birthplace of Lord Rama and that place is
being worshiped on a continuing basis.‖
temple which has been worshipped, lies to the
north of the disputed site. PART N

Moreover, it has been stated that after 1855, the 654

Chabutra in the outer courtyard
The witness relied on an extract from Shri Tulsi
was worshipped as the place of birth. Hence, Dohashatak by Goswami Tulsi
according to Mr Jilani, there is no
Das and on Episode 18 (Bal Khand) of Valmiki
evidence of the area below the central dome being Ramayan and the Vaishnav
worshipped as the place of
Khand of Skand Puran to sustain the faith and
birth of Lord Ram before the dispute over the site belief in the birth-place of Lord
which arose in 1949.
Ram. In the course of his cross-examination, the
552. Having set out the basis of the claim of the witness was subjected to a
Hindus in the religious texts
searching enquiry on his knowledge of Shri
outlined above, it becomes necessary to advert to Ramcharitmanas, when he stated:
the testimony of Jagadguru
―…there is the concluding part of the book titled
Ramanandacharya, a witness whom Mr Jilani ‗Uttarkand‘. I remember the fifth line of the 4th
himself relied upon extensively. Doha in the Uttarkand relating to the Janam
Bhoomi which goes like this – Janam Bhoomi
During his oral arguments, Mr Jilani described the
Mam Puri Suhavan Uttar Disi Bah Sarju Pavani
witness as ―a most scholarly
(Manas 7/4/5). The meaning of the above doha is –
person who knows religion‖. He has been bestowed in my pleasant City is situated Janam Bhoomi Sthal
with the title of to the north of which flows the Saryu river. It is
wrong to suggest that there is no mention of the
Ramanandacharya. The witness suffered from a Janam Bhoomi in this couplet. As a matter of fact,
visual disability since infancy. it has been said that this pleasant city is my
birthplace, which in turn, means that in my pleasant
Surmounting these challenges, he obtained the city is the Janam Bhoomi site.‖
degree of Acharya by pursuing
The witness explained the significance of the fifth
Prathma, Vidyavaridhi and Vachaspati at the and seventh couplets during
Sampooranand Sanskrit
the course of his cross-examination:
Vishwavidyalaya at Varanasi. The witness has a
Ph.D. and a D.Lit and on the ―In the fifth couplet, which starts with the word
‗Janam Bhoomi‘, the word city stands for the
date of his evidence in lieu of the Examination-in- whole city and not for any particular site and the
Chief had authored seventy six same thing has been mentioned by the word ‗ihan‘
in the 7th couplet and the same very thing in
publications. Except for Urdu, the witness stated
couplet No.4 has been described as ‗Awadhpuri‘. It
that he had knowledge of almost
is wrong to suggest that in all these three couplets,
all Indian languages. In his Examination-in-Chief, the word ‗puri‘ has been used in the sense of
the witness stated: Janam Bhoomi. It is correct that in
Ramcharitmanas, except this couplet, there is no

381
mention of Ram Janam Bhoomi elsewhere. It is worshipped in Ayodhya besides Ram Janmabhumi.
true that there is mention of Ayodhya and He stated that there was a
Awadhpuri at various places in Ramcharitmanas. In
Shri Ramcharitmanas, there is no mention of the full structure in 1990. He had entered from the
emergence of or habitation in Ayodhya. However, eastern gate and that there was a
in the Valmiki Ramayana-in the ‗Balkand‘ fifth
wall with a grill at the main gate. He took darshan
section – one does find mention to this effect.‖
at Ramchabutra. During the
553. Swami Avimuketshwaranand Saraswati
course of his cross-examination, the witness stated
(DW 20/2) stated that according to
that Ramacharitmanas does
his ―study and knowledge‖ the disputed site at
not contain a reference to the Ram Janmabhumi
Ayodhya is the birth-place of Shri
Mandir nor does it contain a
Ram and has been worshipped regularly by
specific reference to the construction of a mosque
devotees. He founded his belief on
upon the demolition of a
PART N
temple. During the course of his evidence, the
655 witness alluded to the inscription

the scriptures, more particularly the Valmiki on the disputed building to which there was a
Ramayan to which he makes a reference in the 1960 Uttar

reference: Pradesh District Gazetteer, Faizabad where there

was a reference to the
―That, Lord Narayana, in third Shlok Couplet) of
fifteenth Canto of Balkand of Srimad Valmiki PART N
Ramayana had himself, before taking incarnation
656
by thinking about his birthplace proved the
importance of birthplace.‖ construction of a building at a place where angels
would descend. The witness
Referring to the tenth chapter of the Ayodhya
Mahatmya, the witness relied on stated that the site represented the place of the
incarnation of Lord Ram.
the importance of the Janmasthan:
During the course of his cross-examination, the
―That, method of journey to Ayodhya has been
witness deposed on whether
described in the Tenth Chapter of Ayodhya
Mahatamya of Vaishnavkhand of Skand Puran, there is a reference to the birth-place of Lord Ram
famous as Sthal-Puran. Wherein Janmsthan of Shri in the scriptures. The witness
Rama is clearly referred and its importance is
given. Sites described in Purans with reference to stated that there is no reference to any particular
above context are still in existence in Ayodhya. birth-place of Lord Ram in the
That is why every follower of Sanatan Dharma,
visits these sites, particularly takes Darshan at Shri Purans except in the Ayodhya Mahatmya and
Ram Janam Bhoomi in Ayodhya, performs Vaibhav Khand in the Skand
Parikarma and takes the dust of that place to his
Puran. However, he stated that he did not recall the
head and feels gratified.‖
distance of any place from
He adverted to the image of Varah (the Boar God)
the disputed site. During the course of his cross-
on the southern wall of the
examination, the witness
eastern main gate. The witness narrated the other
furnished an explanation for worship being
temples at which he had
conducted at Ramchabutra, stating

382
that after an outer enclosure was constructed near two hundred steps.
the mosque in 1858, the
Both Dr Rajeev Dhavan and Mr Zafaryab Jilani
Hindus were not allowed to go inside as a result of contested the claim of the Hindus
which they performed puja at
that the place under the central dome of the
the outer Chabutra. This situation according to the disputed structure represents the
witness was altered in 1949
birth-place of Lord Ram. The evidence of the
after the installation of the idols inside the mosque. above witnesses was relied upon by

554. Satya Narain Tripathi (DW3/3) stated that in Mr Jilani to submit that: (i) the scriptures do not
Ramacharitmanas, there is no contain a reference to the site

mention of ―any special place regarding the birth called Ram Janmabhumi; (ii) there is no reference
of Ramachandraji, but only a in the scriptures to the Ram

mention about Ayodhya‖. Mahant Ramji Das Janmabhumi temple or the Janmasthan temple; and
(DW3/7) was asked during cross (iii) there is an absence of

examination whether there is a reference in Sri evidence that the place below the central dome was
Ramacharitmanas to the birth worshipped prior to 1950 by

place of Lord Ram. The question posed to and the the Hindus as the birth place of Lord Ram. Mr
answer of the witness are Jilani submitted that after 1855, the

extracted below: Chabutra was being worshipped as the place of

birth of Lord Ram, which belies
―Question: Is there mention of praise of
Ramachandraji in 3rd, 4th, 5th, 6th ,7th, 8th the notion that the place below the central dome
chopayees after above couplet No.71(b) in was believed to represent Lord
Uttarkand of ―Shri Ramcharit Manas‖ and no
mention about the birth place of Ramachandraji Ram‘s birth-place.
made in them?
555. The Hindu witnesses to whom a reference has
PART N been made earlier have

657 furnished statements of their faith and belief in the

place under the central dome
Answer: There is no mention about the birth place
of Ramachandraji in the above chopayees, it is only being the birth-place of Lord Ram. The witnesses
about taking birth of Ramachandraji.‖ explained the basis of their

Relying on the Ayodhya Mahatmaya, the witness PART N

adverted to the reference to the
658
birth-place in relation to the location of Sitakoop –
belief by interpreting the texts of the scriptures: the
the wall near the disputed site.
Ayodhya Mahatmya, Valmiki
According to the witness:
Ramayan and Ramacharitmanas. The cross-
―Sitakoop is lying in Agnikona and the birthplace examination of the witnesses has
is in the west of Sitakoop.‖
not established any basis for the court to be led to
He explained that the distance from Sitakoop to the the conclusion that the faith
birth-place would be about

383
and belief of the Hindus, as portrayed through these PART N
witnesses is not genuine or
659
that it is a mere pretence. Matters of faith and belief
lie in the personal realm of (i) Travelogues;

the believer. That which sustains solace to the soul (ii) Gazetteers;
is inscrutable. Whether a
(iii) The documentary record pertaining to the
belief is justified lies beyond ken of judicial genesis of and the course which
inquiry. This is not a case where the
the disputes over the site in question followed; and
witness statements indicate that the belief or faith is
(iv) Documentary material pertaining to the use of
a veneer or that it is being
the three domed structure.
put-forth merely as a strategy in a litigation. Once
557. In dealing with this aspect of the case, we
the witnesses have deposed to
must confront a two-fold
the basis of the belief and there is nothing to doubt
difficulty which the High Court perceived. The first
its genuineness, it is not open
facet of that difficulty pertains
to the court to question the basis of the belief.
to scrutinising documentary evidence dealing with
Scriptural interpretations are
over five hundred years of
susceptible to a multitude of inferences. The court
history. The High Court gave expression to its
would do well not to step into
difficulty in unravelling history:
the pulpit by adjudging which, if any, of competing
―3672. What lies underneath? This question is of
interpretations should be
extreme complication ranging in a period of more
accepted. Faith is a matter for the individual than 500 years‘ of history. No clear picture
believer. Once the court has intrinsic emerges from various history books… In fact, the
contemporary record did not answer the issues, one
material to accept that the faith or the belief is or the other way, with certainty but some record,
genuine and not a pretence, it authored after about 200 years i.e., 18th Century,
states about existence of temple, its demolition and
must defer to the belief of the worshipper. This, we the construction of the disputed building, while
must do well to recognise, some well-known historians dispute it and some
history books are silent.‖
applies across the spectrum of religions and their
texts, Hinduism and Islam In another segment of its judgment, the High Court
underscored: (i) the religious
being among them. The value of a secular
constitution lies in a tradition of equal importance of Ayodhya; and (ii) its significance for
Vaishnavites. While dealing
deference.
with the unquestioned belief that Lord Ram was
556. The fact that a belief and faith is held is
born at Ayodhya, the High Court
however a matter which is distinct
encountered another difficulty. This related to the
from the actual place where worship was offered.
attempt to link the birth-place of
In deciding the latter, there has
Lord Ram, as reflected in the scriptures, with an
to be a careful evaluation of the evidentiary record.
identified spot in the evidentiary
The evidentiary material in
record.
the present case consists among other things of

384
The High Court alluded to the fact that the particularly as applicable in civil cases, i.e.,
scriptures do not identify any particular preponderance of probability.‖ (Emphasis supplied)

place in Ayodhya as the place of birth. The 558. There are severe limitations in applying the
interpretation placed by the Hindu test of a balance or

witnesses particularly on Valmiki Ramayan and preponderance of probabilities in situations like the
Ayodhya Mahatmya has been present where faith is

PART N founded in aural traditions as much as in written

text, where belief is nurtured by
660
religion as much as by mythology and cultural
adverted to earlier. The High Court was of the view traditions borne in epics, music
that in the absence of a
and celebrations of festival provide balm to the
‗specific designated‘ site in Ayodhya as the birth- soul of the believer. Bearing the
place of Lord Ram, it was
PART N
difficult to enter a precise finding by retracing
history and linking religious belief to 661

the situation on the ground. This emerges from the difficulties which the High Court has expressed in
following extract from the mind, it is now necessary to

judgment of Justice Sudhir Agarwal: analyse in further detail various threads of the
documentary material.
―To our mind instead of puzzling ourselves in so
much literature etc., certain aspects which emerge 559. We have, on the one hand, Abul Fazal‘s ‗Ain-
from whatever we have mentioned above may be e-Akbari‘. Colonel H S
summarised which probably may give some idea as
to how the questions are to be answered. The Jerrett‘s English translation was first published in
antiquity of Ayodhya is not disputed. It is also not 1893-96. The second edition
disputed that Ayodhya is known as the principal
corrected and further annotated by Sir Jadunath
place of religion and mainly concerned with
Sarkar refers to the Ain-e-Akbari
Vaishnavites, i.e., the followers of Lord Rama.
Lord Rama was born at Ayodhya and ruled there. as:
The religious texts like Valmiki Ramayan and
Ramcharitmanas of Goswami Tulsidas and others ―…an encyclopedia of the religion, philosophy
like Skandpuran etc. mention that Lord Rama was and sciences of the Hindus, preceded by the
born at Ayodhya and it is his place of birth but do chronology and cosmography of the Muslims, as
not identify any particular place in Ayodhya which required by literary convention, for comparison
can be said to be his place of birth. On the one hand with the Hindu ideas on the same subjects.‖
we do not get any idea about the exact place or site
but simultaneously we can reasonably assume that In his editorial introduction written on 17 May
once it is not disputed that Lord Rama was born at 1894, Jerrett had made a reference
Ayodhya there must be a place which could be
to the range and diversity of the subjects covered:
narrowed down at the site of his place of birth. It is
true that a search of a place of birth after long time ―The range and diversity of its subjects (i.e. of the
even today may not be very easy if one tried to find Ain-eAkbari) and the untiring industry which
out in this regard just three or four generations collected and marshalled, through the medium of
back. Therefore,…such kind of inquiry in a matter an unfamiliar language, the many topics of
of such an antiquity is almost impossible. But when information to their minutest details, treating of
a dispute in such a manner is raised then we go by abstruse sciences, subtle philosophical problems,
the well accepted principle in law of evidence

385
and the customs, social, political and religious of a reference to a temple may not be evidence of the
different race and creed, will stand by an enduring absence of a temple. Equally,
monument of his learned and patient diligence…
Though there is much to be desired, his the reference to a mosque is absent in the above
comprehensive and admirable survey yet merits the extract.
highest praise…‖
Travelogues, gazetteers and books
There is a section titled as Ramavatara or Ram-
560. Learned Senior Counsel appearing for the
Incarnation in which the Ain-e
plaintiffs in Suit 5 placed
Akbari states:
reliance on the accounts of numerous travellers and
―He was accordingly born during the Treta yuga gazetteers to highlight the
on the ninth of the light half of the month of
religious importance attached to Ayodhya and the
Chaitra (March-April) in the city of Ayodhya, of
disputed site for the Hindus:
Kausalya wife of Raja Dasaratha.‖
PART N
PART N
663
662
Exhibit 19 – Suit 5: William Foster299 edited a
In a segment titled ―The Subah of Oudh‖, there is
book titled ―Early Travels in
a reference to Oudh which runs
India (1583-1619)‖ which contains narratives of
thus:
seven Englishmen who travelled
―Awadh (Ajodhya) is one of the largest cities of
in northern and western India during the reign of
India. In is situated in longitude 118o, 6‘ and
Akbar and Jahangir. These
latitude 27o, 22. In ancient times its populous site
covered an extent of 148 kos in length and 36 in travellers are:
breadth, and it is esteemed one of the holiest places
of antiquity. Around the environs of the city, they ―Ralph Fitch (1583-91); John Mildenhall (1599-
sift the earth and gold is obtained. It was the 1606); William Hawkins (1608-13); William Finch
residence of Ramachandra who in the Treta age (1608-11); Nicholas Withington (1612-16);
combined in his own person both the spiritual Thomas Coriyat (1612-17) and Edward Terry
supremacy and the kingly office.‖ (1616-19).‖

The footnote refers to Lord Ram: Among them, William Finch arrived in India in
August 1608 at Surat with Captain
―The 7th avatar, who in this capital of the solar
dynasty founded on the chariot wheel of Brahma, Hawkins. According to the Hindu parties, the
consummated the glories of sixty generations of significance of the account of
solar princes and as the incarnate Rama, is the hero
of the famous epic that bears his name.‖ William Finch, who visited Ayodhya between
1608-1611 is that he did not find
Mr Jilani has stressed that in the above extract there
is no specific reference to any building of importance of Islamic origin. There
is a reference in the travels of
the existence of a temple representing Ram
Janmabhumi. Ayodhya is, however, William Finch to Ayodhya:

referred to as the birth-place of Lord Ram. Much ―To Oude (Ajodhya) from thence are 50c; a citie
cannot be attributed to the of ancient note, and seate of a Potan king, now
much ruined; the castle built four hundred yeeres
negative inferences based on what a book does not agoe. Heere are also the ruines of Ranichand(s)
contain. Absence of a castle and houses, which the Indians acknowled(g)e

386
for the great God, saying that he took flesh upon His visit to Ayodhya is described in the text, which
him to see the tamasha of the world. In these ruins was made available during the
remayne certaine Bramenes, who record the names
of all such Indians as wash themselves in the river course of the trial in French. An English translation
running thereby ; which custome, they say, hath was furnished by the
continued foure lackes of yeeres (which is three
Government of India in pursuance of an order of
hundred ninetie foure thousand and five hundred
the High Court. Tieffenthaler‘s
yeeres before the worlds creation). Some two miles
on the further side of the river is a cave of his with account reads thus:
a narrow entrance, but so spacious and full of
turnings within that a man may well loose himself ―Avad called as Adjudea, by the educated Hindus,
there, if he take not better heed ; where it is thought is a city of very olden times. Its houses are (mostly)
his ashes were buried. Hither resort many from all made up of mud only; covered with straw or tiles.
parts of India, which carry from hence in Many (however), are made of bricks. The main
remembrance certaine graines of rice as blacke as street goes from South to North and it has a length
gunpowder, which they say have beene reserved of about a mile. The width (of the city) is a little
ever since. Out of the ruines of this castle is yet lesser. Its western side and that of North as well,
much gold tried. Here is great trade, and such are situated on a mud hill. That of north-east is
abundance of Indian asse-horne that they make situated on knolls. Towards Bangla it is united.
hereof bucklers and divers sorts of drinking cups.
There are of these hornes, all the Indians affirme, Today, this city has been hardly populated, since
some rare of great the foundation Bangla or Fesabad (1) – a new city
where the Governor established his residence – and
299William Foster, in which a great number (of inhabitants of Oude)
―Early Travels in India (1583-1619)‖, London settled in. On the South bank (of Deva) are found
(1921) at pg 176 various buildings constructed by the nobles in
memory of Ram, extending from East to West.
PART N The most remarkable place is the one which is
called (2) Sorgadaori, which means: the celestial
664
temple. Because they say that Ram took away all
price, no jewell comparable, some esteeming them the inhabitants of the city from
the right unicorns horne.‖ 300 Jose K. John, The Mapping of Hindustan : A
Fortotten Geographer of India, Joseph Tieffenthaler
The expression ―ruines of Ranichand(s) castle and (1710-1785), Proceedings of the Indian History
Houses‖ has appended to it a Congress, Vol. 58 (1997) at pages 400-410

footnote stating: ―Ram Chandra, the hero of the PART N

Ramayana. The reference is to
665
the mound known as the Ramkot or fort of Rama.‖
there to heaven: This has some resemblance/
561. Exhibit 133 – Suit 5: Joseph Tieffenthaler similarity to the Ascent of the Lord. The city, thus
wrote his travel account in deserted, was repopulated and was brought back to
its earlier status by Bikarmadjit - the famous king
Latin in his book titled ―Description Historiqueet of Oude (OUDH) [OUDJEN] (3)
Geographique Del‘inde‖.
There was a temple in this place constructed on the
Tieffenthaler was a Jesuit Missionary, reportedly elevated bank of the river. But Aurengzeb, always
proficient in Arabic, Persian keen to propagate the creed of Mohammed and
abhorring the noble people, got it demolished and
and Sanskrit and visited India in 1740. His travels
replaced with a mosque and two obelisks, with a
were between 1743-1785300.
view to obliterate even the very memory of the
Hindu superstition. Another mosque build by the
Moors is adjacent to the one towards the East.

387
Close to Sorgadoari is a building constructed will be greater by about one minute than that of
lengthways by Nabairay_a Hindu, a formerly Bangla.
lieutenant of the Governor (proprietor) of this
region (a). But a place especially famous is the one The fortress constructed in square from situated on
called Sitha Rassoi i.e. the table of Sita, wife of the elevated bank of the river, is equipped with
Ram, adjoining to the city in the South, and is round and low towers. The walls need to be
situated on a mud hill. repaired. It is uninhabited and is not protected.
Earlier, the Governors of the province had their
Emperor Aurengzeb got the fortress called Ramcot residence here. Sadatkhan frightened by a bad
demolished and got a Muslim temple, with triple forecast got it transferred to Bangla. Today, it is
domes, constructed at the same place. Others say destroyed from top to bottom. In a space of 2 miles,
that it was constructed by ‘Babor’. Fourteen black from the place where the canons are planted up to
stone pillars of 5 (/) span (4) high, which had ‗Oude‘, the Gagra takes its course towards east,
existed at the site of the fortress, are seen there. making a double bend – one close to the western
Twelve of these pillars now support the interior side of the city and the other, a little distance from
arcades of the mosque. Two (of these 12) are there, towards the West. And bending from there
placed at the entrance of the cloister. The two towards the NE# and ¼ E, it washes the city in the
others are part of the tomb of some ‗Moor‘. It is West; after that, it returns towards the East, close to
narrated that these pillars, or rather this debris of the northern side. But it has been changing its
the pillars skillfully made, were brought from the course almost every year. Its river bed is equal (in
Island of Lanca or Selendip (called Ceyian by the width) to that of Danube near the citadel of
Europeans) by Hanuman, King of Monkeys. Ingoldstadt in Bavaria, but the volume of water is
less. In rainy season, it increases breadth-wise in
On the left is seen a square box raised 5 inches such a way that at some places, its breadth exceeds
above the ground, with borders made of lime, with a mile and a half.‖ (Emphasis supplied)
a length of more than 5 ells(5) and a maximum
width of about 4 ells. The Hindus call it Bedi i.e. Tieffenthaler‘s account was relied on by various
‗the cradle. The reason for this is that once upon a Hindu parties as it emphasises
time, here was a house where Beschan was born in
the form of Ram. It is said that his three brothers the following features:
too were born here. Subsequently, Aurengzebe or
(i) It contains a reference to the belief of the
Babor, according to others, got this place razed in
Hindus that Lord Ram is the
order to deny the noble people, the opportunity of
practicing their supersitions. However, there still human incarnation of Vishnu (described as
exists some superstitious cult in some place or Beschan in the account). The
other. For example, in the place where the native
house of Ram existed, they go around 3 times and account sets out the belief of the Hindus that Lord
prostrate on the floor. The two spots are surrounded Ram was born at the
by a low wall constructed with battlement. One
enters the front hall through a low semi-circular site, the symbol of it being the ―Bedi‖ or
door. ―cradle‖;

PART N (ii) The account while adverting to the faith of the

Hindus in Lord Ram makes
666
a reference to other associated places of worship
Not far from there is a place where one digs out including ―Sorgadaori‖
grains of black rice, burned into small stones,
which are said to have been hidden under the earth (Swarg Dwar) and ―Sitha Rassoi‖ (Sita Rasoi);
since the time of Ram. On the 24th of the Tschet
PART N
month, a big gathering of people is done here to
celebrate the birthday of Ram, famous in the entire 667
India. This vast city is a mile away from Bangla at
the east towards E. N. E such that its latitude also

388
(iii) The account contains a reference to the reference to the faith of the Hindu devotees and
alleged demolition by Aurangzeb contains a reference to the

of ―the fortress called Ram Cot‖ and the alleged demolition, in his opinion most likely to
construction of a mosque with have been at the hands of

triple domes at the same place. Tieffenthaler Aurangzeb, and the erection of a mosque on the
however, also records that site which is believed to be the

according to some the mosque was constructed by PART N

Babur;
668
(iv) Tieffenthaler‘s account contains a reference to
the use of fourteen black birth-place of Lord Ram. The account adverts to
the use of many black stone
stone pillars which had existed at the site of the
erstwhile fortress. Twelve pillars in the structure of the mosque.

of them are stated to support the interior arcades of 562. Exhibit 20 – Suit 5: Robert Montgomery
the mosque. Two are Martin wrote the ―History,

stated to be at the entrance of the cloister; Antiquities, Topography and Statistics of Eastern
India‖ in three volumes.
(v) He describes a square box raised 5 inches above
the ground which Martin, born in Dublin in 1801, was an Anglo-Irish
author and civil servant.301 He
according to the Hindus is the cradle (representing
the birth of Lord Ram); spent ten years in medical practice in Shillong, East
Africa and New South Wales
(vi) The account notes that in spite of the alleged
demolition (by Aurangzeb or besides working as a journalist in Calcutta where
he established the ―Bengal
Babur), ―there still exists some superstitious cult
in some place or other‖ Herald‖.302

that continues to worship at the site. An example of Martin‘s account on Ayodhya is as follows:
that is stated to be the
―The people of Ayodhya imagine, that after the
place where the ―native house‖ of Lord Ram is death of Vrihadbala, their city was deserted, and
thought to have existed, continued so until the time of Vikrama of Ujjain,
who came in search of the holy city, erected a fort
around which Hindus circumambulate (―go called Ramgar, cut down the forests by which the
around‖) three times and ruins were covered, and erected 360 temples on the
places sanctified by the extraordinary actions of
prostrate on the floor; and Rama, of his wife Sita, of his brother Lakshman,
and of his general Mahavira. The only foundation
(vii) The account makes a reference to the presence
probably for such a tradition is, that Vikrama may
of a large gathering of
have erected some temples, and that in the
people to mark and celebrate the birthday of Lord Mahabharat the genealogy of the family is
Ram. continued no lower than the time of Vrihadbala, as
being foreign to the subject of the book; but in the
Tieffenthaler‘s travels to Ayodhya were after 1740, sri Bhagwat Vrihadbala is succeeded by 29 princes,
which would have been a and in the Bangsalata by 24. These, taken
according to the scales of Rama's predecessors in
little over three decades after the death of Valmiki and the Sri Ghagwat, would give 18
Aurangzeb. His account makes a princes, and this will give us 279, or 558 years,

389
according as we call these succesions reigns or of Vikrama. Martin later refers to the destruction of
generations, bringing the existence of the family temples and the erection of
down to the time nearly of Alexander; but none of
the latter princes rose to considerable power, and mosques ―on the situations of the most
they were vassals of the kings of Magadha. Their remarkable temples‖ of which, he states
existence, however, throws a great doubt on the
that the mosque at Ayodhya has ―every
whole story concerning Vikrama.
appearance of being the most modern‖.
This Vikrama is usually supposed to have been the
His account (at pages 335 and 336) is as follows:
personage from whom the era called Sambat is
derived, and according to the reckoning used in ―The bigot by whom the temples were destroyed,
Kosala, this ere commences 57 years before the is said to have erected mosques on the situations of
birth of Christ, so that the the most remarkable temples, but the mosque at
301 Robert Montgomery Martin (Biographical Ayodhya, which is by far the most entire, and
details) – British Museum 302 F. H. H. King, which has every appearance of being the most
Survey our empire! Robert Montgomery Martin modern, is ascertained by an inscription on its walls
(1801–1868), a bio-bibliography (1979) (of which a copy is given) to have been built by
Babur, five generations before Aurungzeb. This
PART N
renders the whole story of Vikrama exceedingly
669 doubtful, especially as what are said to be the ruins
of his fort, do not in any essential degree differ
city had been then deserted about 280 years. How from those said to have belonged to the ancient
the places remarkable for the actions of the God city, that is, consist entirely of irregular heaps of
could be traced after such a long interval, and broken bricks, covered with sol, and remarkably
amidst the forest, seems rather doubtful; and the productive of tobacco; and, from its name, Ramgar,
doubt will be increased, if we suppose that the I am inclined to suppose that it was a part of the
latter Vikrama, the son-in-law of the Emperor building actually erected by Rama.
Bhoj, was the person who constructed the temples
at Ayodhya. This I am inclined to think was PART N
probably the case, for although Rama was probably
670
worshipped before the time of the elder Vikrama,
yet his worship, as that peculiarly distinguishing a Although, I do not fail to visit the place, and
sect of Bigots, seems to have been first established whatever the Hindus reckon remarkable, I did not
by Ramanuja about the time of the latter Vikrama, choose to take any measurements, so as to draw
who may from thence be supposed peculiarly eager with any accuracy a plan of the space which the
to discover the traces of the deity of his own sect. ruins occupy, as the doing so might have given
Unfortunately, if these temples ever existed, not the offence to the Government of the Nawab Vazir, in
smallest trace of them remains to enable us to judge whose territory, separated from this district only by
of the period when they were built; and the the river Sarayu, they are situated.
destruction is very generally attributed by the
Hindus to the furious zeal of Aurungzebe, to whom I may in a general manner observe, that the heaps
also is imputed the overthrow of the temples in of bricks, although much seems to have been
Benares and Mathura.‖ carried away by the river, extend a great way, that
is, more than a mile in length, and more than half a
Martin‘s account notes some inconsistencies as to mile in width: and that although vast quantities of
the exact ruler who is said to materials have been removed to build the
Muhammedan Ayodhya or Fyzabad, yet the ruins
have rediscovered Ayodhya and constructed the
in many parts retain a very considerable elevation;
numerous temples. In his view
nor is there any reason to doubt, that the structure
the worship of Lord Ram in the region was likely to which they belonged, has been very great; when
carried out even prior to the time we consider that it has been ruined for above 2000
years. None of the Hindu buildings at present

390
existing are in the least remarkable either for size basis of a copy which was given to him and infers
for architecture, and they are all not only evidently, that the mosque was built by
but avowedly, quite, modern. that is, they have
been all erected since the reign of Aurungzeb, most Babur. The mosque at Ayodhya, he describes as
of them even within the memory of man. Although having ―every appearance of
they are built on what I have no doubt are the ruins
being the most modern‖. It also refers to the alleged
of the palace that was occupied by the princes of
destruction of Hindu places
the family of the sun, their being built on the spots,
where the events which they are intended to of worship by Aurangzeb. Martin has also adverted
celebrate, actually happened, would have been to the presence of pillars in
extremely doubtful, even had the elder Vikrama
built temples on the various places which had been the mosque made up of black stone. The account
destroyed by Aurungzeb, so that the spots selected narrates that these have been
by Vikrama might be known by tradition; but the
whole of that story being liable to strong suspicion, taken from a Hindu building which he infers from
we may consider the present appropriation of the traces of the images
names of different places as no better founded than
observable on some of the pillars, although, ―the
the miracles, which several of them are said to
images have been cut off to
commemorate.
satisfy the conscience of the bigot‖. In Martin‘s
It is said that in digging for bricks many images
view, it is unlikely that the ruins
have been discovered, but the few which I was able
to trace were too much broken to ascertain what rest on the exact spots where the historical events
they were meant to represent, except one at the attributed to them occurred.
convent (Aakhara) of Guptar, where Lakshman is
supposed to have disappeared. This represents a To his mind the whole story is of greater religious
man and woman carved on one stone. The latter and mythological significance
carries somewhat on her head, and neither has any
resemblance to what I have before seen. The only than historical. Worship at these spots
thing except these two figures and the bricks, that commemorates the significant events that
could with probability be traced to the ancient city,
are believed by the Hindus to have occurred there.
are some pillars in the mosque built by Babur.
These are of black stone, and of an order which I 563. Exhibit 5 – Suit 5: Edward Thornton‘s
have seen nowhere else, and which will be Gazetteer titled ―Gazetteer of the
understood from the accompanying drawing. That
they have been taken from a Hindu building, is territories under the Government of East India
evident, from the traces of images being observable Company and the Native
on some of their
States on the Continent of India‖303 first published
PART N in 1858.

671 303 Edward Thornton,

1799-1875: A Gazetteer of the Territories Under
basis; although the images have been cut off to the Government of the East-India Company, And
satisfy the conscience of the bigot. It is possible of the Native States On the Continent of India,
that these pillars have belonged to a temple built by London: W. H. Allen (1854).
Vikrama; but I think the existence of such temples
doubtful; and if they did not exist, it is probable PART N
that the pillars were taken from the ruins of the
palace. They are only 6 feet high.‖ (Emphasis 672
supplied)
Thornton‘s Gazetteer contains a reference to ―an
Martin‘s account adverts to the inscription on the extensive establishment called
walls of the mosque on the

391
―Hanumangurh, or Fort of Hanuman‖, with an which Rama was….as the seventh avtar of Vishnu;
annual revenue of 50,000 settled and is accordingly abundantly honoured by the
pilgrimages and devotions of the Hindoos.
on it by Shuja-ud-daulah, ―formerly Nawaub
Vizier‖. The revenues are stated to PART N

be dispensed to about 500 bairagis or religious 673

ascetics and other Hindu
Ayodhya or Oude is considered by the best
mendicants of various descriptions ―no authorities to be the most ancient city in
Mussulman being allowed with the walls‖. Hindostan.‖ (Emphasis supplied)

Thornton‘s Gazetteer also refers to ―extensive This account notes that no traces of the ancient
ruins, said to be those of the fort temples remain. The gazetteer

of Rama‖: relied on ―an inscription on the wall of the

mosque‖ to attribute the construction to
―Close to the town on the east, and on the right
bank of the Ghogra, are extensive ruins, said to be Babur while also noting that the ―local tradition‖
those of the fort of Rama, king of Oude, hero of the ascribed the destruction of the
Ramayana, and otherwise highly celebrated in the
mythological and romantic legends of India. temples and the construction to Aurangzeb. The
Buchanan observes, ―that the heaps of bricks, gazetteer has relied on the
although much seems to have been carried away by
opinion of Buchanan.
the river, extend a great way: that is more than a
mile in length, and more than half a mile in width; 564. Exhibit 123- Suit 5: Surgeon General Edward
and that, although vast quantities of materials have Balfour wrote the
been removed to build the Mahomedan Ayodhya or
Fyzabad, yet the ruins in many parts retain a very ―Cyclopedia of India and of Eastern and Southern
considerable elevation nor is there any reason to Asia, Commercial,
doubt that the structure to which they belonged has
been very great, when we consider that it has been Industrial and Scientific: Products of the Mineral,
ruined for above 2,000 years. ―The ruins still bear Vegetable, and Animal
the name of Ramgur, or ―Fort of Rama; ―the
Kingdoms, Useful Arts and Manufactures‖304.
most remarkable spot in which is that from which,
Balfour‘s text refers to Ayodhya:
according to the legend, Rama took his flight to
heaven, carrying with him the people of his city; in ―AYODHYA, on the right bank of Gogra River,
consequence of which it remained desolate until Near Fyzabad in Oudh, is in latitude on 26o 48‘ 20‖
half a century before the Christian era, and by him North; and longitude 80o 24‘ 40‖ E. It has now a
embellished with 360 temples. Not the smallest population of 7518 of Hindus and Mahomadans but
traces of these temples, however now remain; and in ancient times it was the capital of the kingdome
according to native tradition, they were demolished of Kosala, the Modern Oudh, ruled over by the
by Aurungzebe, who built a mosque on part of the great King Dasarath of the Solar line, and father of
site. The falsehood of the tradition is, however, Ram Chandra. At one time it is said to have
proved by an inscription on the wall of the mosque, covered an area of 12 yojana, equal of 96 miles.
attributing the work to the conqueror Baber, from During Buddhist supremacy Ajodhya declined, but
whom Aurungzebe was fifth in descent. The on the revival of Brahmanism it was restored by
mosque is embellished with fourteen columns of King Vikramaditya (AD 57). There are many Jain
only five to six feet in height, but of very elaborate Temples and three mosques on the site of three
and tasteful workmanship, said to have been taken Hindu shrines, -the Janmsthan on the site where
from the ruins of the Hindoo fanes... A Ram was born, the Swarg Dwar (Mandir) where his
quadrangular coffer of stone, whitewashed, five remains were burnt, and the Tareta Ka Thakur,
ells long, four broad, and protruding five or six framed as the scene of one of his great sacrifices. A
inches above ground, is pointed out as the cradle in

392
mausoleum is here of the Babu Begum and is the Almost due west, and upwards of five miles
finest in Oudh.‖ (Emphasis supplied) distant, is the Gupta Ghat, with its group of modern
white-washed temples. This is the place where
304 Surgeon General Lakshman is said to have disappeared, and hence
Edward Balfour, Cyclopaedia of India and of its name of Guptar from Gupta, which means
Eastern and Southern Asia, Commercial, Industrial ―hidden or concealed.‖ Some say that it was Rama
and Scientific: Products of the Mineral, Vegetable, who disappeared at this place, but this is at
and Animal Kingdoms, Useful Arts and variance with the story of his cremation at
Manufactures, Third Edition, London: Bernard Swargadwari.‖
Quaritch, 15 Piccadilly 1885
305 Alexander
PART N Cunningham, Four Reports Made During the Years
1862-63-64-65, Archaeological Survey of India,
674
Volume 1, Simla: Government Central Press, 1871
565. Exhibit 6 – Suit 5: Alexander Cunningham,
PART N
who was the Director
675
General of the Archaeological Survey of India
compiled the work titled 566. Exhibit 49- Suit 5: P Carnegy, who was posted
as Officiating
―Archaeological Survey of India - Four Reports
Made During the Years 1862 Commissioner and Settlement Officer, Faizabad
wrote the ―Historical Sketch of
63-64-65‖305. Cunningham refers to Ayodhya
thus: Faizabad With Old Capitals Ajodhia and
Fyzabad‖306 (1870). Carnegy
―There are several very holy Brahmanical temples
about Ajudhya, but they are all of modern date, and underscores the importance of Ayodhya to the faith
without any architectural pretensions whatever. But of the Hindus:
there can be no doubt that most of them occupy the
sites of more ancient temples that were destroyed ―Ajudhia – Ajudhia, which is to the Hindu what
by the Musulmans. Thus Ramkot, or Hanuman Macca is to the Mahomedan, Jerusalem to the
Garhi, on the east side of the city, is a small walled Jews, has in the traditions of the orthodox, a highly
fort surrounding a modern temple on the top of an mythical origin, being founded for additional
ancient mound. The name Ramkot is certainly old, security not on the earth for that is transitory, but
as it is connected with the traditions of the Mani on the chariot wheel of the Great Creator himself
Parbat, which will be hereafter mentioned; but the which will endure for over.‖
temple of Hanuman is not older than the time of
Aurangzib. Ram Ghat, at the north-east corner of Carnegy refers to the Janmasthan, Swarga Dwar
the city, is said to be the spot where Rama bathed, Mandir and Treta-Ke-Thakur.
and Sargdwari or Swargadwari, the ―Gate of
He attributes the construction of the mosque to
Paradise.‖ On the north-west is believed to be the
Babur in 1528, noting that it still
place where his body was burned. Within a few
years ago there was still standing a very holy- bears his name. In Carnegy‘s opinion, many of the
Banyan tree called Asok Bat, or the ―Griefless columns of an erstwhile
Banyan, ―a name which was probably connected
with that of Swargadwari, in the belief that people temple have been used in the construction of the
who died or were burned at this spot were at once Babri mosque. These pillars as
relieved from the necessity of future births. Close
by is the Lakshman Ghat, where his brother he states, are made out of Kasauti stone and are
Lakshman bathed, and about one-quarter of a mile carved. Carnegy who was a
distant, in the very heart of the city, stands the
settlement officer has adverted to the conflagration
Janam Asthan, or ―Birth-place temple‖ of Rama.
which took place in 1855

393
between the Hindus and Muslims. According to he passed into Paradise, possibly the spot where his
him, during the conflict, the body was burned. The Tareta-Ke-Thakur was
famous as the place where Rama performed a great
Hindus occupied Hanuman Garhi while the sacrifice, and which he commemorated by setting
Muslims took possession of the up there images of himself and Sita. ―667. Babar's
mosque.- According to Leyden's Memoirs of
Janmasthan. The attempt of the Muslims to lead a
Babar, that emperor encamped at the junction of
charge on Hunuman Garhi
the Serwu and Gogra rivers, two or three kos east
was repulsed by the Hindus resulting in the death from Ajudhya, on the 28th March, 1528, and there
of 75 Muslims who are buried he halted seven or eight days, settling the
surrounding country. A well-known hunting-
in the graveyard. The Hindus are stated to have ground is spoken of in that work, seven or eight kos
then taken possession of the above Oudh, on the banks of the Sarju. It is
remarkable that in all the copies of Babar's life now
Janmasthan. According to Carnegy until then both known the pages that relate to his doings at
Hindus and Muslims alike Ajudhya are wanting. In two places in the Babari
mosque the year in which it was built, 935 H.,
worshipped in what he describes as the ―mosque-
corresponding with 1528 A.D., is carved in stone,
temple‖. However, since
along with inscriptions dedicated to the glory of
colonial rule, a railing was put up within which, it that emperor.
has been stated that the
If Ajudhia was then little other than a wild, it must
306 Historical Sketch of at least have possessed a fine temple in the
Faizabad With Old Capitals Ajodhia and Fyzabad Janamsthan; for many of its columns are still in
by P. Carnegy, Officiating Commissioner and existence and in good preservation, having been
Settlement Officer, Oudh Government Press, 1870 used by the Musalmans in the construction of the
Babari Mosque. These are of strong close-grained
PART N dark slate-colored or black stone, called by the
natives Kasoti (literally touch-stone,) and carved
676 with different devices. To my thinking these
strongly resemble Budhist pillars that I have seen at
Muslims pray, while outside the fence the Hindus
Benares and elsewhere. They are from seven to
have raised a platform on which
eight feet long, square at the base, centre and
they make their offerings. Carnegy‘s account is capital, and round or octagonal intermediately
extracted below:
Hindu and Musalman differences.-The Janamsthan
―The Janmasthan and other temples.- It is locally is within a few hundred paces of the Hanuman
affirmed that at the Mahomedan conquest there Garhi. In 1855 when a
were three important Hindu shrines, with but few
PART N
devotees attached, at Ajudhya, which was then
little other than a wilderness. These were the 677
―Janmasthan,‖ the ―Sargadwar mandir,‖ also
known as ―Ram Darbar,‖ and ―Tareta-Ke- great rupture took place between the Hindus and
Thakur.‖ On the first of these the Emperor Baber Mahomedans, the former occupied the Hanuman
built the mosque which still bears his name, A.D. Garhi in force, while the Musalmans took
1528; on the second Aurangzeb did the same, A.D. possession of the Janamsthan. The Mahomedans on
16581707; and on the third that sovereign, or his that occasion actually charged up the steps of the
predecessor, built a mosque according to the well- Hanuman Garhi, but were driven back with
known Mahomedan principle of enforcing their considerable loss. The Hindus then followed up
religion on all those whom they conquered. The this success, and at the third attempt, took the
Janmasthan marks the place where Ramchandar Janamasthan, at the gate of which 75 Mahomedans
was born. The Sargadwar is the gate through which are buried in the ―Martyrs' grave‖ (Ganj-Shahid.)
Several of the King's Regiments wee looking on all

394
the time, but their orders we not to interfere. It is Revenue, Faizabad District – (1880)‖ broadly
said that up to that time the Hindus and embodies the contents of
Mahomedans alike used to worship in the mosque-
temple. Since British rule a railing has been put up Carnegy‘s account.
to prevent disputes, within which in the mosque the
569. Exhibit 52 – Suit 5: H.R. Nevill, I.C.S.
Mahomedans pray, while outside the fence the
compiled and edited the work titled
Hindus have raised a platform on which they make
their offerings.‖ (Emphasis supplied) ―Barabanki: A Gazetteer being Volume XLVIII
of the District Gazetteer of the
The various Hindu parties placed reliance on the
account of Carnegy to establish United Provinces of Agra and Oudh‖ (1902). This
contains an account of the
the belief of the Hindus that the Janmasthan was
the place of birth of Lord Ram, clash between the Hindus and Muslims which
occurred in the 1850s.
and the Kasauti columns were used in the
construction of the mosque. There is a 570. Exhibit 10 – Suit 5: ―The Imperial Gazetteer
of India, Provincial series,
reference to the carvings on the Kasauti pillars.
Carnegy‘s account, which was United provinces of Agra and Oudh – Vol. II
(Allahabad, Banaras,
published in 1870 has adverted to the incident
which took place in 1855 involving Gorakhpur, Kumaon, Lucknow and Faizabad
divisions and the native
a conflict between the Hindus and Muslims. He
refers to worship being offered by states)‖. The Imperial Gazetteer has the following
account of Ayodhya:
both Hindus and Muslims ―in the mosque-temple‖
prior to the incident and to the ―Ajodhya was the capital of the kingdom of
Kosala and contained the court of the great king
construction of a railing thereafter, with a view to
Dasaratha, fifty-sixth monarch of the Solar line in
prevent disputes. Carnegy
descent from Raja Manu. The opening chapters of
notes that the railing was put up so as to separate the Ramayana recount the magnificence of the city,
the two communities, by the glories of the monarch, and the virtues, wealth,
and loyalty of his people. Dasaratha was the father
allowing the Muslims to worship within its of Rama Chandra, the hero of the epic, whose cult
precincts in the mosque while the has experienced a great revival in modern times.
With the fall of the last of the Solar line, Raja
Hindus had outside it, raised a platform to make Sumintra, the one hundred and thirteenth monarch,
their offerings. Ajodhya became a wilderness and the royal family
dispersed. From different members of this scattered
567. Exhibit 7 – Suit 5: Gazetteer of Oudh (1877):
stock the Rajas of Udaipur, Jaipur, &c., claim
The gazetteer contains a
descent. Tradition relates that Ajodhya was
description in the same terms as the account of restored by king Vikramaditya of Ujjain, whose
Carnegy and therefore does not identity is a matter of dispute. Ajodhya was of
small importance in Buddhist times, when Saketa
need any further elaboration. became the chief city of Kosala. It is still uncertain
where Saketa was situated, and it has been
PART N suggested that it occupied part of the ancient city of
Ajodhya. Numismatic evidence points to the rule of
678
a line of independent Rajas, in or near Ajodhya,
568. Exhibit 8 Suit – 5: AF Millet‘s ―The Report about the commencement of the Christian era.‖
of Settlement of Land
PART N

395
679 which this took concrete shape and the manner in
which it is reflected in the
Referring to the ―present town‖, the gazetteer
notes: religious work, Ayodhya Mahatmya. Introducing
his work, the author notes:
―The present town stretches inland from a high 307Hans Bakker, Ayodhya, Egbert Forsten
bluff overlooking the Gogra. At one corner of a Publishers (1986)
vast mound known as Ramkot, or the fort of Rama,
is the holy spot where the hero was born. Most of PART N
the enclosure is occupied by a mosque built by
Babar from the remains of an old temple, and in the 680
outer portion a small platform and shrine mark the
―…two matters of great consequence became
birthplace. Close by is a larger temple in which is
evident. First that the religious development of
shown the cooking-place of Sita, the faithful wife
Ayodhya into a centre of pilgrimage took place in
of Rama. A lofty temple stands on the bank of the
the second millennium AD and consequently the
Gogra at the place where Lakshmana bathed; and
that the Ayodhyamahatmya in all its versions
Hanuman, king of the monkeys, is worshipped in a
belongs to this period; secondly that the growth of
large temple in the town, approached by an
the religious significance of the town was linked up
immense flight of steps, which bears the name
with the rise of the worship of Rama as the
Hanuman Garhi. Other noticeable temples built
principal manifestation of Visnu.‖
during the eighteenth and nineteenth centuries are
the Kanakbhawan, a fine building erected by a Rani The author traces the History of Saketa/Ayodhya
of Tikamgarh, the Nageshwarnath temple, Darshan from 600 B.C. to A.D. 1000 in
Singh's temple, and a small marble temple built by
the present Maharaja. Ajodhya also contains a Chapter I, noting that the site is situated on a curve
number of Jain temples, five of which were built in of river Sarayu (Gogra) which
the eighteenth century to mark the birthplaces of
the five hierarchs who are said to have been born at encircles the modern town on three sides. He states:
Ajodhya. Besides the mosque of Babar, two ruined
―In the centre of this site is an area of broken
mosques, built by Aurangzeb, stand on the sites of
ground called the Ramkot or Kot Ramchandar,
celebrated Hindu shrines-the Swargadwara, where
which today is occupied for a great part by temples
Rama's body was cremated, and the Treta-ka-
and maths. Especially on its southern side,
Thakur, where he sacrificed. An inscription of Jai
however, several artificial mounds are found that
Chand, the last king of Kanauj, has been found in
are hardly built on and are strewn with broken
the latter. Three graves are reverenced by
bricks and blocks of stone, especially the so-called
Musalmans as the tombs of Noah, Seth, and Job,
Kubertila on the southwestern corner.
and the two last are mentioned under those names
in the Ain-i-Akbari. A large mound close by, called The site described above with a river surrounding it
the Maniparbat, is said to have been dropped by on three sides and an area of elevated ground in the
Hanuman when carrying a portion of the centre, not far from a crossing of the river, seems to
Himalayas, while another tradition asserts that it possesses all the essential physical characteristics
was formed by the coolies who built Ramkot of an ancient settlement. Two excavations in
shaking their baskets as they left work ; it possibly Ayodhya have been reported so far.‖
covers a ruined stupa.‖
(Emphasis supplied) Baker notes that from the middle of the first
century A.D., the Dattas of Kosala
571. Exhibit 23 - Suit 5: Hans Baker wrote his
work ―Ayodhya‖307 in three were increasingly confronted with the Kushana
power in the west which resulted
parts. The introduction states that the first part
deals with the history of Ayodhya, in a siege of a capital by Kanishka. According to
Baker, following the reign of
the religious movements which governed its
development, the local context in

396
Chandragupta - I in A.D 320 and the reign of his Like other holy places to come, Mathura and
successor Samudragupta, Varanasi, ―which were practically abandoned
after Gupta times‖, the city reemerged in the
Saketa was placed under the direct rule of beginning of the second millennium.‖
Patliputara. There was a renewal of
Baker has noted that the survival of Ayodhya can
Brahmanical institutions and learning in the latter also be attributed to its central
half of fourth century A.D. in the
position in north India and its strategic value in the
context of which it has been stated: Gangetic plain. Under the

―During the early Gupta period the evolution of Delhi Sultanate of the thirteenth century, Ayodhya
the Brahmanic religion into Hinduism was was to once again become a
accomplished. Along with the deification of the
king the theory of god‘s avataras on earth – be it in provincial capital. In later times, its commercial
the form of an idol or as a ‗historical‘ human being and strategic importance came to
–
be taken over by rival townships – Jaunpur in the
PART N fifteenth century, Faizabad in

681 the eighteenth century and by Lucknow towards the

end of eighteenth and
gained solid ground. By this development, as we
have seen, the way was paved for recognition of beginning of the nineteenth century. Ayodhya did
the glorious town of Ayodhya of yore as the city of not fall into decay and is stated
Saketa. So forceful was this revival, that the
Budhist pilgrim Fahsien, who visited Saketa under PART N
Samudragupta‘s successor Chandragupta II, hardly
682
perceived anything of his interest in ―the great
country of Shachi‖ and its capital. What we to have witnessed a flourishing of the religious life
accidentally learn from his account is that Saketa in the city. Adverting to
was a walled town.‖ Tracing the history of the
town in the fifth century, Baker notes: Chinese sources, Baker observes:

―The fifth century would appear to be a crucial ―From Chinese sources as we know that King
phase in the history of the town. It saw Vikramaditaya, i.e. Skandagupta, had the royal
Saketa/Ayodhya in the heyday of its prosperity court installed in Ayodhya (According to
and ‗restored‘ to its ‗former‘ glory as capital of the Paramartha), or ‗country of Srasvati‘ (according to
illustrious Iksvaku kings. It is true, owing to the Hieun Tsang). It is beyond doubt that the ‗country
disintegration of the Gupta empire and the of Sravasti‘ refers to Kosala, the capital of which
consequent general recession, that this prestige was at that time Saketa/Ayodhya, not Sravasti. The
suffered a serious drawback in the following possibility remains open that the royal court had
centuries, yet it safeguarded the town from the already moved from Pataliputra to Saketa/Ayodhya
same destiny that fall upon the majority of the during the reign of Kumaragupta. We have seen
cities of the Gupta empire, namely a languishing that the first inscription featuring the name of
existence after the Gupta age resulting in a final Ayodhya dated from the reign of this King. In the
disappearance from the stage of history. Thanks to inscriptions preserved the last Gupta ruler to
its recognition as the legendary town of the mention Pataliputra is Kumaragupta‘ father
Iksvakus, and most of all as the capital of Lord Candragupta II.‖
Visnu himself in his incarnation of Rama, the town
never fully disappeared from the purview of the Baker notes the prevalence of a local tradition in
Hindus, and consequently it could, when the Ayodhya which ascribes the re
circumstances were set for such a development,
discovery of the town to Vikramaditya. This oral
reappear as one of holiest places of North India.
tradition was reported by Martin

397
in 1838, and after him by Cunningham and to the presence of a square box raised five inches
Carnegy (1870). above the ground ―with a

Analysis of accounts of travellers and the length of more than 5 ells and a maximum width of
gazetteers about 4 ells‖. The Hindus,

572. William Finch (1608-11) makes a reference to according to Tieffenthaler, called it a cradle or Bedi
Oude (Ajodhya) ‗a citie of based on the belief that once

ancient note, and seate of a Potan king now much upon a time there was a house where Beschan
ruined‖. Finch notes of a (Vishnu) was born in the form of

castle built 400 years earlier and the ruins of Lord Ram. Though, subsequently, Aurangzeb or
―Ram Chandra‘s castle and Babur ―got this place destroyed‖,

houses‖308. Finch acknowledges the religious the text contains an observation that in the place
beliefs associated with Lord Ram where the native house of Lord

stating the purpose of his incarnation. Tieffenthaler Ram existed, the Hindus ―go around 3 times and
(1770) refers to the prostrate on the floor‖. There is

association of Lord Ram with Ayodhya, and there a reference to the gathering of devotees during the
is a reference to ―a temple in Chaitra month.

this place constructed on the elevated bank of the 573. In assessing Tieffenthaler‘s account (and for
river‖. Tieffenthaler states that that matter those of others)

the temple was demolished by Aurangzeb and was it is necessary to distinguish between what he may
replaced with a mosque. have heard from others from

Tieffenthaler has made a specific reference to the what he has actually noticed and observed. The
demolition by Aurangzeb of former is hearsay.

308 Ram Chandra, the Tieffenthaler‘s accounts of the existence of the

hero of the Ramayana. The reference is to the mosque, a three domed
mound known as the Ramkot or fort of Rama.
structure with black stone pillars is evidently based
PART N on his personal observation.

683 His opinion that the mosque was constructed most

likely by Aurangzeb is
the fortress called Ram Cot and to the construction
of ―a Muslim temple with evidently based on what he heard and is not
something to his personal
three domes‖ at the same place. Tieffenthaler‘s
account also notes that knowledge. Similarly, any finding of fact that the
mosque was constructed upon
according to some, the mosque was constructed by
Babur. The account contains the demolition of a temple needs independent
verification and cannot be based
a reference to fourteen black stone pillars, twelve
of which support the interior purely on Tieffenthaler‘s account. The account is
certainly of significant value
arcades of the mosque, two being placed at the
entrance. His account also refers PART N

684

398
when it adverts to the existence of the faith and 575. Martin‘s account (1838) contains a reference
belief of the Hindus in Lord Ram to the destruction of temples

and of the association of the place of birth in close- at Ayodhya ―generally attributed by the Hindus to
proximity to the three-domed the furious zeal of Aurangzebe‖,

structure where a ―square box‖ was worshipped as noting that ―not the smallest trace of them
symbolizing the cradle of remains‖. The mosque at Ayodhya

birth. The account has a reference to the form of PART N

worship, by circumambulation
685
and to the assembly of devotees at the site.
which Martin‘s states ―has every appearance of
574. Hamilton‘s account in the ―East Indian being the most modern‖ is
Gazetteer of Hindustan‖ (1828)
ascertained by the inscription on its walls to have
refers to Oude, ―situated on the right bank of the been built by Babur, five
river Goggra. Referring to the
generations before Aurangzeb. Martin refers to the
town, Hamilton notes that ―this town is esteemed belief of the people of
one of the most sacred places
Ayodhya that after the death of Vrihadbala, their
of antiquity.‖ He adverts to pilgrimages, ―where city was deserted until the time
the remains of the ancient city of
of ―Vikrama of Ujjain‖ who came in search of the
Oude, the capital of the great Rama, are still to be holy city and erected 360
seen; but whatever may have
temples on the places sanctified by the belief of
been its former magnificence it now exhibits Lord Ram. Martin while referring
nothing but a shapeless mass of
to ―Vikrama‖, refers both to the originator of the
ruins‖. He found ―a mass of rubbish and jungle Samvat era and to the latter day
among which are the reputed
Vikram. According to Martin, it was likely that the
sites of temples dedicated to Rama, Seeta, his wife, worship of Lord Ram dates
Lakshman, his general, and
back to ―the time of elder Vikrama‖ yet, his
Hunimaun (a large monkey), his prime minister‖. worship as a part of a sect must have
Hamilton noticed the religious
been first established by Ramanuja. These are a
mendicants, performing the pilgrimage drawn from part of Martin hypothesising on
―the Ramata sect, who walk
the origins of the city and its temples. That does not
round the temples and idols, bathe in the holy constitute evidence. Martin,
pools, and performed the
while referring to the pillars in the mosque built by
customary ceremonies‖. While Hamilton evidently Babur, notes that these are of
adverts to the belief and faith
black stones and have been taken from a Hindu
in Lord Ram, to the temples at Ayodhya and to the building, which is evidenced by
customary forms of worship,
the images on some of their bases which have been
there is no specific observation either about a Ram desecrated. According to
Janmabhumi temple or to the
Martin, these pillars would have been taken from
mosque. the ruins of a palace. Martin‘s

399
account, as the above analysis indicates, is constructed by Babur as opposed to the local
inferential. While he has spoken of tradition which ascribed the

his own observations in regard to the mosque; of construction of the mosque to Aurangzeb. There is
the faith and belief associated according to him, no specific

with Lord Ram; and the presence of black stone reference to the worship by the Hindus under the
pillars the account contains middle dome of the mosque.

largely an account of his own assessment of past However, it is relevant to note that Thornton‘s
history. observations are not personal and

576. Edward Thornton‘s account in the ―Gazetteer he has drawn an inference from the text of
of the territories under the Buchanan.

Government of East India Company‖ (1858) refers The purpose of the colonial government was to
to ―extensive ruins, said to be offer to the British public in ―a

those of the fort of Rama‖. Thornton proceeds to cheap and convenient form‖ authentic information
cite extracts from a text about India in the form of a

attributed to Buchanan. He makes a reference to gazetteer. Bearing this caveat in mind, it is relevant
the lore surrounding the to note that the above extract

PART N adverts to:

686 (i) The ruins of ―Ramgur or Fort of Rama‖;

construction of 360 temples and to the belief of (ii) The presence of 14 Kasauti stone pillars in the
their demolition by Aurangzeb. mosque with ―elaborate and

His attribution of the construction of a mosque on tasteful workmanship‖ and;

the site of a temple is not proof
PART N
of a historical fact. Thornton records what he
heard: neither those who told him 687

about their belief nor the author of the document (iii) A ―quadrangular coffer of stone‖, believed to
are available to be assessed in be the cradle in which Lord

the course of a cross-examination. Such an account Ram was born as the avatar of Lord Vishnu.
cannot meet the rigorous
578. Cunningham‘s ―Archaeological Survey of
standards of acceptable evidence as well as the India‖ (1862-5) refers to
more relaxed standard of a
existence of ―several holy Brahmanical temples
preponderance of probabilities which govern civil about Ajudhya‖ and that the
trials.
―ancient temples were destroyed by the
577. Mr Zafaryab Jilani, learned Senior Counsel Musalmans‖. The report states that ―in
appearing for the Sunni Central
the very heart of the city, stands the Janam Asthan‖,
Waqf Board, has stressed that in the above extract or ―birth-place temple‖ of
the gazetteer relies upon ―an
Ram‖. The text refers for Ramkot, Swargadwari
inscription on the wall of the mosque‖ to support and notices that ―about one
the theory that the mosque was

400
quarter of a mile distant, in the very heart of the temple‖. However, since British Rule, a railing was
city, stands the Janam Asthan or put up to avoid future conflicts.

‗Birth-place temple‘ of Rama.‖ Mr Jilani contended Within it, it has been stated, the Muslims pray,
that the reference to the while outside the fence the Hindus

Janamsthan or birth-place temple of Ram is not the raised a platform on which they made their
same as the disputed offerings. Carnegy‘s account refers to

structure and that it is located somewhere else. three religious sites, including the Janmasthan. His
Cunningham‘s account notices account has attributed the

a conglomeration of religious sites including construction of the mosque to Babur, on the site of
Hanuman Garhi, Swarg Dwar, the Janmasthan which he

Lakshman Ghat and the Janmasthan. states, ―marks the place where Ram Chander was
born‖.
579. P Carnegy as Officiating Commissioner and
Settlement Officer has in ―A 580. Carnegy has relied on Leyden‘s memoirs on
the expedition of Babur,
Historical Sketch of Faizabad‖ (1870) underscored
the importance of Ayodhya to which camped at the junction of the Sarayu and
Gogra river, taking notice of the
the faith of Hindus, with a reference to the
Janmasthan, Swarga Dwar Mandir and fact that ―it is remarkable that in all the copies of
Babur‘s life now known, the
Treta-Ke-Thakur. He attributes the construction of
the mosque to Babur in 1528 pages that relate to his doings in Ajudhia are
wanting‖. He noted two inscriptions
A.D. and notes that many of the Kasauti stone
columns of an erstwhile temple on the mosque, attributing its construction to 1528
A.D. There is a reference to
have been used in the mosque. His account adverts
to ―Ramkot the strong-hold the Kasauti stone pillars used in the mosque, which
to him, resemble Buddhist
of Ramchandar‖ and that the fort was ―surrounded
by 20 bastions‖, each of which pillars. Based on them, he hypothesises that ―if
Ajudhia was then little other than
was believed to have been commanded by one of
Lord Ram‘s famous generals. a wild, it must at least have possessed a fine temple
in the Janmasthan; for many
Carnegy adverted to the conflagration which took
place in 1855 between the of its columns are still in existence and in good
preservation, having been used
Hindus and Muslims and the resultant death of 75
Muslims who were buried in by the Musalmans in the construction of the Babri
Mosque.‖
PART N
Carnegy provides an account of the conflagration
688 of 1855:

the graveyard next to the disputed structure. ―Hindu and Musalman differences– The
According to Carnegy, until then, Janmasthan is within a few hundred paces of the
Hanuman Garhi. In 1855 when a great rapture took
Hindus and Muslims alike used to worship in what
place between the Hindus and the Muhammadans,
he describes as the ―mosque
the former occupied the Hanuman Garhi in force,

401
while the Musalmans took possession of the construction of the railing outside the mosque.
Janmasthan. The Mohammadans on that occasion According to his account, the
actually charged up the steps of the Hanomangarhi,
but were driven back with considerable loss. The Hindus would have set up the platform outside the
Hindus then followed up this success, and at the railing, faced with the
third attempt took the Janmasthan at
exclusion caused from the erstwhile mode of
PART N worship as a result of the

689 construction of the railing. As will be explored

subsequently, the platform was
the gate of which 75 Muhammadan are buried in
the ‗martyr‘s grave‘ (ganj-i-shahid). Several of the constructed in close-proximity to the railing from
King‘s Regiments were looking on all the time, but where worship was offered and
their orders were not to interfere. It is said that up
offerings were made to what the Hindus believe to
to that time the Hindus and Mohomedans alike
be the birth-place of Lord
used to worship in the mosque-temple. Since
British rule a railing has been put up to prevent the Ram.
disputes, within which in the mosque, the
Mahomedans pray, while outside the fence the PART N
Hindus have raised a platform on which they make
their offerings.‖ 690

Carnegy‘s account is about fifteen years after the 581. The Imperial Gazetteer of India (1908) refers
incident of violence which to a ―vast mound‖ known as

resulted in the railing being put up by the British to ―Ramkot, or the fort of Rama‖ and the existence at
separate the two communities a corner of which is the holy

in their areas of worship. Mr Jilani challenged spot where Lord Ram was born. The gazetteer
Carnegy‘s account insofar as it records that most of the enclosure

refers to worship both by Hindus and Muslims is occupied by a mosque built by Babur from the
within the ―mosque-temple‖ prior to remains of an old temple. It

the incident. Carnegy is indeed cautious in the refers the existence of Ramchabutra in the outer
above extract when he observes portion that ―marks the birth

that ―it is said‖ that upto that time, Muslims and place‖ of Lord Ram. The gazetteer notices the
Hindus alike prayed inside the presence of Sita Rasoi in close

mosque. But the account indicates something on proximity.

which there is no dispute
582. The District Gazetteer of Faizabad, (1960)309
namely, that the railing came up after the incident attributes to Chandragupta
as a barrier which would
I the status of being the real founder of the
separate the two communities in the conduct of kingdom ―which extended upto Saketa
religious worship – Muslims in
(Awadh) and Prayaga (Allahabad)‖. The credit for
the inner courtyard and the Hindus in the outer restoration of Ayodhya is
courtyard. Significantly,
attributed to Vikramaditya of Ujjain identified as
Carnegy‘s account links the construction of the Chandragupta II. The gazetteer
platform by the Hindus to the

402
notes that the Chinese pilgrim Hiuen Tsang (630- of 1885, the plaintiff sought no prayer with respect
644 A.D.) passed through Oudh to the inner courtyard;

and referred to the existence of ―100 Buddhist (v) It was only in Suit 5 of 1989 that the concept of
monasteries, more than 3,000 a Janmasthan was

Mahayani and Hinayani monks and only ten deva introduced prior to which the belief that the central
(non-Buddhist god) temples, dome was the birth

the non-Buddhist being but few in number‖. place of Lord Ram did not exist; and
According to the gazetteer, most of
(vi) The theory of the middle dome marking the
the area represented by the beliefs of the Hindus, to birth-place of Lord Ram only
be the birth-place of Lord
comes from the statements of witnesses in Suit 5.
Ram is occupied by the mosque. The claim by the
gazetteer is that the mosque The formulation of Mr Jilani that the Ramchabutra
is the birth-place will assume
was constructed on the remains of an old temple. It
notices that in the outer significance from two perspectives: the first is that
the entire site comprising of
portion, a small platform and shrine marked the
birth-place. the inner and outer courtyards is one composite
property, the railing being put up
583. On his analysis of the gazetteereers and
travelogues during the course of by the colonial government only as a measure to
protect peace, law and order.
the submissions, Mr Jilani formulated the following
propositions: The second perspective is that Mr Jilani‘s
submission postulates: (i) the
309 U.P. District
Gazetteer Faizabad by Smt. Isha Basant Joshi. acceptance of the position that the birth-place is at
(1960 Edition) an area within the disputed

PART N site (the Ramchabutra, according to him); and (ii)

there is no denying the close
691
physical proximity of Ramchabutra, which was set
(i) For the period dating from the construction of up right outside the railing.
the mosque in 1528 until

1949, there is no evidence to establish the belief of

the Hindus that the PART N

place of birth of Lord Ram was below the middle 692

dome of the mosque;
Evidentiary value of travelogues, gazetteers and
(ii) There is no evidence to show continuity of books
Hindu worship inside the
584. Dr Rajeev Dhavan, learned Senior Counsel
mosque onwards from 1828; appearing on behalf of the

(iii) Ramchabutra is the birth-place of Lord Ram; plaintiff in Suit 4 urged that any use of historical
material consisting of travelogues
(iv) Ramchabutra as the birth-place is corroborated
by the fact that in the Suit and gazetteereers should be prefaced with caution.
Dr Dhavan urged that:

403
(i) Issues of title cannot be decided on the basis of the Indian Evidence Act. The question of title
historical work, treatises between the trustee of a mosque, though an old and
historical institution, and a private person cannot,
and travelogues; in our opinion, be deemed to be a ―matter of
public history‖ within the meaning of the said
(ii) The court ought not to pursue the line of
section.
approach adopted by counsel for
We must, therefore, exclude this piece of evidence
the plaintiffs in Suit 5 who attempted to draw
from consideration, and we do not think that this
inferences on the basis of
exclusion would make any difference in the result.
untested historical material; and The description contained in the two books does
not advance the case for the plaintiff to any
(iii) History cannot be read or interpreted without appreciable extent, and, indeed, this description can
recourse to historiography. be gathered from other admissible evidence on the
record.‖ (Emphasis supplied)
Dr Dhavan faulted the methodology followed by
Justice S U Khan and Justice A similar view was adopted by a two judge Bench
of this Court in Karnataka
Sudhir Agarwal on the ground that their analysis
proceeds on the basis of guess Board of Waqf v Government of India311, where
Justice Rajendra Babu
work. Raising the issue as to how a preponderance
of probabilities can be fed observed:

into gazetteereers, he submitted that by relying ―8….As far as a title suit of civil nature is
upon historical material, the High concerned, there is no room for historical facts and
claims. Reliance on borderline historical facts will
Court was essentially being asked (as he described lead to erroneous conclusions. The question for
it) ―to stand at the cusp of resolution herein is the factum of ownership,
possession and title over the suit property. Only
guess work‖.
admissible evidence and records could be of
585. Analysing the submissions which have been assistance to prove this.‖
urged, we must at the outset
586. Section 57312 of the Evidence Act 1872
advert to the decision of the Punjab Chief Court in elucidates facts of which judicial
Farzand Ali v Zafar Ali310. In
notice must be taken by the court. After delineating
that case, there was a dispute between the 13 categories of fact of which
Mutawalli of a mosque and the
311 (2004) 10 SCC 779
defendants, who were descendants of the late 312 57. Facts of which Court must take judicial
Imam, over certain properties. The notice.—The Court shall take judicial notice of the
following facts:— [(1) All laws in force in the
Mutawalli claimed it as a part of a religious territory of India;] (2) All public Acts passed or
endowment. The court held: hereafter to be passed by Parliament [of the United
Kingdom], and all local and personal Acts directed
310 (1918) 46 IC 119 by Parliament [of the United Kingdom] to be
judicially noticed; (3) Articles of War for [the
PART N
Indian] Army, [Navy or Air Force]; [(4) The
693 course of proceeding of Parliament of the United
Kingdom, of the Constituent Assembly of India, of
―We are inclined to think that the use of the Parliament and of the legislatures established under
historical works to establish title to the property any law for the time being in force in a Province or
cannot be justified on the strength of section 57 of in the State;] (5) The accession and the sign manual

404
of the Sovereign for the time being of the United and signatures of the persons filling for the time
Kingdom of Great Britain and Ireland; (6) All seals being any public office in any State, if the fact of
of which English Courts take judicial notice: the their appointment to such office is notified in [any
seals of all the [Courts in [India]], and all Courts Official Gazette]; (8) The existence, title and
out of [India] established by the authority of 8[the national flag of every State or Sovereign
Central Government or the Crown Representative]: recognized by [the Government of India]; (9) The
the seals of Courts of Admiralty and Maritime divisions of time, the geographical divisions of the
Jurisdiction and of Notaries Public, and all seals world, and public festivals, fasts and holidays
which any person is authorized to use by [the notified in the Official Gazette; (10) The territories
Constitution or an Act of Parliament of the United under the dominion of [the Government of India];
Kingdom or an] Act or Regulation having the force (11) The commencement, continuance, and
of law in [India]; termination of hostilities between [the Government
of India] and any other State or body of persons;
PART N (12) The names of the members and officers of the
Court and of their deputies and subordinate officers
694
and assistants, and also of all officers acting in
judicial notice may be taken, it stipulates that ―in execution of its process, and of all advocates,
all these cases, and also on all attorneys, proctors, vakils, pleaders and other
persons authorized by law to appear or act before
matters of public history, literature, science and it; (13) The rule of the road, [on land or at sea].
arts, the court may resort to In all these cases, and also on all matters of public
history, literature, science or art, the Court may
appropriate books or documents for reference‖. The resort for its aid to appropriate books or documents
above provision enables the of reference. If the Court is called upon by any
person to take judicial notice of any fact, it may
court to resort ―for its aid‖ to books and reference
refuse to do so, unless and until such person
documents inter alia on matters
produces any such book or document as it may
of public history. consider necessary to enable it to do so.

587. While extensive reliance has been placed on 313 Section 81 of the Evidence Act 1872 provides
the gazetteereers by counsel thus: Presumption as to Gazettes, newspapers,
private Acts of Parliament and other documents -
representing the plaintiffs in Suit 5 and by other The Court shall presume the genuineness of every
counsel appearing for the Hindu document purporting to be the London Gazette, or
[any Official Gazette, or the Government Gazette]
parties, it is necessary to read them in the context of any colony, dependency of possession of the
of the principles of law which British Crown, or to be a newspaper or journal, or
to be a copy of a private Act of Parliament [of the
govern the reliance on gazetteereers.
United Kingdom] printed by the Queen's Printer,
588. Section 81 of the Evidence Act 1872 requires and of every document purporting to be a
the court to ―presume the document directed by any law to be kept by any
person, if such document is kept substantially in the
genuineness of every document purporting to be‖ form required by law and is produced from proper
any Official Gazetteere or the custody.

Government Gazette ―of any colony, dependency PART N

or possession of the British
695
Crown‖.313 Section 81 raises a presumption of the
genuineness of the document and not of its contents. When the court has to form
an opinion on the existence of

a fact of a public nature, Section 37 of the Evidence

(7) The accession to office, names, titles, functions,
Act314 indicates that any

405
statement of it in a government gazette is a relevant the Crown Representative appearing in the Official
fact. While gazetteereers Gazette or in any printed paper purporting to be the
London Gazette or the Government Gazette of any
have been noticed in several decisions of this Dominion, colony or possession of His Majesty is a
Court, it is equally important to relevant fact. 315 (1873-74) 1 IA 209

note that the reliance placed on them is more in the

nature of corroborative
PART N
material.
696
589. In Rajah Muttu Ramalinga Setupati v
In Ghulam Rasul Khan v Secretary of State for
Perianayagum Pillai315, the Privy
India in Council316, the Privy
Council dealt with an objection to the judgment of
Council held:
the High Court on the ground
―…statements in public documents are receivable
that excessive weight had been given to the reports
to prove the facts stated on the general grounds that
of Collectors. In that context,
they were made by the authorized agents of the
the Privy Council held: public in the course of official duty and respecting
facts which were of public interest or required to be
―Their Lordships think it must be conceded that recorded for the benefit of the Community:
when these reports express opinions on the private Taylor‘s, Law of Evidence, 10th Ed., S. 1591). In
rights of parties, such opinions are not to be many cases, indeed, in nearly all cases, after a lapse
regarded as having judicial authority or force. But of years it would be impossible to give evidence
being the report of public officers made in the that the statements contained in such documents
course of duty, and under statutable authority, they were in fact true, and it is for this reason that such
are entitled to great consideration so far as they an exception is made to the rule of hearsay
supply information of official proceedings and evidence.‖ (Emphasis supplied)
historical facts, and also in so far as they are
relevant to explain the conduct and acts of the In Sukhdev Singh v Maharaja Bahadur of
parties in relation to them, and the proceedings of Gidhaur317, this Court explored the
the Government founded upon them.‖ (Emphasis
nature of a zamindari and examined the District
supplied)
Gazetteer in that context. The
The Privy Council cautioned against the use of the
court observed:
report of the Collector when it
―The statement in the Gazetteer is not necessarily
opined on matters relating to private rights. But as
conclusive, but the Gazetteer is an official
records of official proceedings
document of some value, as it is compiled by
or historical facts, and to explain the conduct of experienced officials with great care after obtaining
parties in relation to them, they the facts from official records. As Dawson Miller,
C.J. has pointed out in Fulbati‘s case [AIR 1923
would provide useful material. Patna 453] there are a few inaccuracies in the latter
314 Section 37 of the Evidence Act 1872 provides part of the statement quoted above, but so far as the
thus : Relevancy of statement as to fact of public earlier part of it is concerned, it seems to derive
nature, contained in certain Acts or notifications.- considerable support from the documents to which
When the Court has to form an opinion as to the reference is made.‖
existence of any fact of a public nature, any
statement of it, made in a recital contained in any In the above extract, the court carefully calibrated
Act of Parliament [of the United Kingdom], or in its reliance on the
any [Central Act, Provincial Act, or [a State Act],
gazetteereer, noting that it was not ―necessarily
or in a Government notification or notification by
conclusive,‖ but of ―some value‖.

406
The portion, which was relied upon by the court, as court may consult to an appropriate extent with due
it noted, derived considerable circumspection).

support from documents and was hence grounded In Vimla Bai v Hiralal Gupta319, the issue was
in them. The rest was not whether a female bandhu was

relied upon. The court independently assessed its entitled to succeed to the estate of the male holder
corroborative value. It rejected through her mother‘s side

one part and the part which it accepted was found within five degrees of the male holder. On the issue
to derive support from other of the inam register, this

316 1925 SCCOnLine Court observed that it had ―great evidentiary

PC 12 317 (1951) SCR 534 value‖ but its entries had to be

PART N considered in the context of other evidence on the

record. On the evidentiary
697
value of an official gazette, the two judge Bench of
documentary material. In other words, the contents this Court dealt with the
of the gazetteereer, even in
318 1966 Supp. SCR
so far as they were acceptable, were corroborative. 436 319 (1990) 2 SCC 22

590. In Mahant Shri Srinivasa Ramanuj Das v PART N

Surajnarayan Dass318, Justice
698
Raghubar Dayal, while dealing with the contents of
O‘ Malley‘s Puri Gazetteer of provisions of Section 37 and Section 57(13) of the
Evidence Act 1872 in the
1908, which had elucidated the history of a Math
observed: context of migration and observed:

―It is urged for the appellant that what is stated in ―4. ... Thus, it is clear that migration cannot be
the Gazetteer cannot be treated as evidence. These presumed but it must be established by adduction
statements in the Gazetteer are not relied on as (sic) of evidence. The question then arises is
evidence of title but as providing historical material whether the recital in Indore State Gazette relied
and the practice followed by the Math and its head. on, at the appellate stage, can form the sole base to
The Gazetteer can be consulted on matters on establish that the plaintiff's family were the
public history.‖ migrants from Mathura in U.P. Section 37 of the
Evidence Act, 1872 postulates that any statement
The above observations indicate that the statements made in a government gazette of a public nature is
in the gazetteer were not a relevant fact. Section 57(13) declares that on all
matters of public history, the court may resort for
relied on as evidence of title but as providing a
its aid to appropriate books or documents of
historical background including on
reference, and Section 81 draws a presumption as
matters relating to the practice followed by the to genuineness of gazettes coming from proper
Math. A clear distinction must be custody. Phipson on Evidence, the Common Law
Library (Thirteenth Edition) at page 510 paragraph
drawn between relying on a gazetteereer to source 25.07 stated that the government gazettes ... are
a claim of title (which is admissible (and sometimes conclusive) evidence of
the public, but not of the private matters contained
impermissible) and as reference material on a therein...
matter of public history (which the

407
5. The statement of fact contained in the official being official record evidencing public affairs and
Gazette made in the course of the discharge of the the court may presume their contents as genuine.
official duties on private affairs or on historical The statement contained therein can be taken into
facts in some cases is best evidence of facts stated account to discover the historical material
therein and is entitled to due consideration but contained therein and the facts stated therein is
should not be treated as conclusive in respect of evidence under Section 45 and the court may in
matters requiring judicial adjudication. In an conjunction with other evidence and circumstance
appropriate case where there is some evidence on take into consideration in adjudging the dispute in
record to prove the fact in issue but it is not question, though may not be treated as conclusive
sufficient to record a finding thereon, the statement evidence.‖ (Emphasis supplied)
of facts concerning management of private temples
or historical facts of status of private persons etc. In other words, the gazette was not treated to be
found in the official Gazette may be relied upon independent evidence of a
without further proof thereof as corroborative
conclusive nature in itself. The court has a caution
evidence.‖ (Emphasis supplied)
in the above extract. The
A statement of fact contained in the Official
contents of the gazetteer may be read in
Gazette made in the course of the
conjunction with other evidence and
discharge of official duties on private affairs or on
circumstances. They may be taken into
historical facts in ―some cases‖
consideration but would not be
is the best evidence of facts and is entitled to ―due
conclusive evidence.
consideration‖. However, it
[See also the decision in Aliyathammuda
should not be treated as conclusive on matters
Beethathebiyyappura Pookoya v
requiring judicial adjudication.
Pattakal Cheriyakoya321].
Questions of title raise issues for adjudication.
Conflicting claims of title require 592. The historical material which has been relied
upon in the course of the
PART N
proceedings before the High Court must be
699
weighed in the context of the salutary
judicial adjudication. Statements contained in a text
principles which emerge from the above decisions.
of history or in a gazetteer
The court may have due
cannot conclude the issue of title. 320 1995 Supp (1) SCC 485 321 2019 SCCOnLine
953
591. In Bala Shankar Maha Shanker Bhattjee v
Charity Commissioner, PART N

Gujarat State320, the issue was whether the temple 700

of Kalika Shrine on
regard to appropriate books and reference material
Pavagadh was a public trust within the meaning of on matters, of public history.
the Bombay Public Trust Act
Yet, when it does so, the court must be conscious
1950. In this context, a two judge Bench of this of the fact that the statements
Court held:
contained in travelogues as indeed in the accounts
―22…It is seen that the Gazette of the Bombay of gazetteers reflect opinions
Presidency, Vol. III published in 1879 is admissible
on matters which are not amenable to be tested by
under Section 35 read with Section 81 of the
cross-examination at this
Evidence Act, 1872. The Gazette is admissible

408
distant point of time. Consequently, where there is ―There is a two-way traffic between past and
a dispute pertaining to present, the present being moulded out of the past,
yet constantly recreating the past. If the historian
possession and title amidst a conflict of parties, makes history, it is equally true that history has
historical accounts cannot be made the historian … The present-day philosopher
of history, balancing uneasily on the razor edge
regarded as conclusive. The court must then decide
between the hazards of objective determinism and
the issue in dispute on the
the bottomless pit of subjective relativity,
basis of credible evidentiary material. conscious that thought and action are inextricably
intertwined, and that the nature of causation, in
593. Interpreting history is an exercise fraught with history no less than in science, seems the further to
pitfalls. There are evident elude his grasp the more firmly he tries to grapple
with it, is engaged in asking questions rather than
gaps in the historical record, as we have seen from in answering them.‖322
the Babur-Nama.

Translations vary and have their limitations. The

court must be circumspect in In a case such as the present, history presents
another difficulty: in Eastern
drawing negative inferences from what a historical
text does not contain. We are philosophy, religious tradition is transmuted
through generations by modes not
not construing a statute or a pleading. We are
looking into historical events knit confined to written records. Marc Bloch in his
work titled ―The Historian‘s
around legends. stories, traditions and accounts
written in a social and cultural Craft‖323, spoke of this when he said:

context different from our own. There are dangers ―For, unlike others, our civilization has always
in interpreting history without been extremely attentive to its past. Everything has
inclined it in this direction : both the Christian and
the aid of historiography. Application of legal
the classical heritage. Our first masters, the Greeks
principles to make deductions and
and the Romans, were history-writing peoples.
inferences out of historical context is a perilous Christianity is a religion of historians. Other
exercise. One must exercise religious systems have been able to found their
beliefs and their rites on a mythology nearly
caution before embarking on the inclination of a outside human time.‖ (Emphasis supplied)
legally trained mind to draw
While we have made a reference to the accounts of
negative inferences from the silences of history. travellers and gazetteers, we
Silences are sometimes best left
read them with caution. The contents of these
to where they belong - the universe of silence. accounts cannot be regarded as

594. In a contribution to the Times Literary being conclusive on the issue of title which has
Supplement on 19 June 1953 titled necessitated an adjudication in

―Victorian History‖, E.H Carr had the following the present proceedings. While the gazetteers may
caution: provide to the court a glimpse

PART N on matters of public history, history itself is a

matter of divisive contestation.
701
While the court is not precluded from relying on
the contents as relevant material,

409
they must be read together with the evidence on the Muslim University and a former President of the
record in order to enable the Indian History Congress; (iii)

322 Introduction by Professor D N Jha, Professor of History, Delhi

Richard J Evans in E.H. Carr, What is History?, University; and (iv) Professor Suraj
Penguin (2018 reprint) at page 12 323 Marc Bloch,
The Historian‘s Craft, Penguin (2019 reprint), at Bhan, Professor of Archaeology and Dean, Faculty
page 4 of Social Sciences,

PART N Kurukshetra University, Haryana. The report was

submitted under a covering
702
letter dated 13 May 1991 by Professor R S Sharma,
court to enter its findings of fact in the course of Professor M Athar Ali,
the present adjudication. Above
Professor D N Jha and Professor Suraj Bhan.
all, the court must sift matters which may be of a
hearsay origin in its effort to PART N

deduce the kernel of truth which lies hidden in the 703

maze of conflicting claims.
The significant observations in the report are:
Travellogues and gazetteers contain loose
(i) There is no basis in the Skandpuran (Ayodhya
fragments of forgotten history. The
Mahatmya) to indicate the
evidentiary value to be ascribed to their contents
site of Babri Masjid as the birth-place of Lord
necessarily depends upon the
Ram;
context and is subject to a careful evaluation of
(ii) The carvings on the pillars of the mosque do
their contents. Our analysis has
not indicate a Vaishnavite
included in the balance, the need for
association;
circumspection, as we read in the accounts
(iii) The brick bases which were found in the
of travellers and gazetteers a colonial perspective
excavation conducted by
on the contest at the disputed
Professor BB Lal in 1979 were mentioned by him
site.
only in 1990 though
N.14 Historian‘s report
several papers had been published by him;
595. On 13 May 1991, four historians prepared a
(iv) Professor B B Lal did not mention the pillar
document which is titled:
bases in his report submitted to
―Babri Mosque or Rama‘s Birth Place?
the ASI in 1979-80;
Historians‘ Report to the Indian
(v) No stone pillars or architecture of roof material
Nation‖. The report has been authored by (i)
of a temple were found in
Professor RS Sharma, formerly a
the debris of the trenches where the pillar bases
Professor at Delhi University and Chairperson of
stood; and
the Indian Council of Historical
(vi) There is no mention of Babri Masjid in Ram
Research; (ii) Professor M Athar Ali, formerly a
Charitmanas composed in
Professor of History at Aligarh
1675-76.

410
The conclusions in the study were: expertise on the ground that he was an
archaeologist and not an authority on
(i) No evidence exists in the texts to indicate that
before the eighteenth medieval history.

century any veneration was attached to a spot in 597. Justice Agarwal proceeded to analyse the
Ayodhya as being the evidence of Suvira Jaiswal (PW

birth site of Lord Ram; 18), formerly a Professor at Jawahar Lal Nehru
University. PW 18 stated that her
(ii) There are no grounds for supposing that a
temple of Lord Ram, or any knowledge about the destroyed site was on the
basis of newspapers or the work
temple, existed at the site where Babri Masjid was
built in 1528-29; of other historians. Justice Agarwal questioned the
credentials of PW 18, noting
(iii) The legend that Babri Masjid occupied the site
of Lord Ram‘s birth did not that she was a doctoral student under the guidance
of Professor R S Sharma
arise until the late eighteenth century; and that a
temple was destroyed to who was a co-author of the report. Ultimately, he
concluded that the report had
PART N
not been signed by all the four historians (Professor
704 DN Jha not having signed it)

build a mosque was not asserted until the beginning and the opinion of an alleged expert (PW 18) was
of the nineteenth not based on her study and

century; and research but a reflection of what others had written.

Accordingly, the learned
(iv) The ―full-blown legend‖ of the destruction of
the temple at the site of the PART N

birth of the Lord Ram and Sita Ki Rasoi dates to 705

1850 after which there is a
judge held that it was not credible evidence under
―progressive reconstruction of imagined history, Section 45 of the Evidence
based on faith‖.
Act.
596. Justice Sudhir Agarwal noted that the report
had not been signed by Dr Dhavan has submitted that on the sole basis of
the report not having been
Professor D N Jha, a fact which was admitted by
Professor Suraj Bhan (PW 16) signed by Professor D N Jha, Justice Sudhir
Agarwal erroneously proceeded to
who deposed in evidence. The report indicated that
the material from the make strictures against the four historians. He
urged that while assessing the
excavations of Professor B B Lal had not been
available for inspection to the four credibility of the historians, the learned Judge
confounded his assessment of PW
historians.
18 with the authors of the report. These
Having extracted from the deposition of PW 16, observations, it has been urged did not
Justice Agarwal rejected his
pertain to the historians but to PW 18.

411
598. We are of the view that Justice Agarwal has segment of this judgment, it is not necessary to
been unjustifiably harsh on carry the matter any further save

the four historians. The learned judge seems to and except to clarify that the historians‘ report
have confounded his criticism of which is prior to the report of ASI,

PW 18 (who had only relied on the work of others cannot carry any significant degree of weight, since
without any independent they have not had the benefit

assessment) with the report of the historians. PW of analysing the material which has emerged from
18 was not part of the team of the ASI report. The inferences

historians. The fact that one of the four historians which have been drawn by the historians in regard
did not sign on the covering to the faith and belief of the

document was not reason enough to discard the Hindus in the birth-place of Lord Ram constitute
work in its entirety. The weight their opinion. Evidence having

which could be attributed to the historians‘ report is been led in the suits, this Court cannot rest a
a distinct matter but, while finding of fact on the report of the

analysing this aspect, it was not necessary for the historians and must evaluate the entirety of the
High Court to make evidence. The issue of title,

observations in regard to the personal standing and insofar as Suit 5 is concerned, has to be decided
qualifications of the together with Suit 4 on an

historians. It is thus necessary to clarify that those overall assessment of the evidence. Hence, at the
observations were present stage, the next

unnecessary for the exercise which was being segment of the judgment will proceed with
embarked upon by the High Court. analyzing Suit 4. The question of title

Having said this, it is evident from the report of the will be ultimately adjudicated after marshaling the
four historians that they did entirety of the evidence.

not have the benefit of inspecting the material on O. Suit 4: Sunni Central Waqf Board
the basis of which Dr B B Lal
O.1 Analysis of the plaint
had conducted his research in 1979. But that apart
and more significantly, the 599. Suit 4 was instituted on 18 December 1961 by
the Sunni Central Waqf
PART O
Board. As amended, the following reliefs have
706 been sought in the plaint:

report by the historians pre-dates the material ―(a) A declaration to the effect that the property
which has emerged in the form of indicated by letters A B C D in the sketch map
attached to the plaint is public mosque commonly
the ASI report which was prepared during the known as ‗Babri Masjid‘ and that
pendency of the suit in pursuance
PART O
of the directions of the High Court. Since the four
historians did not have the 707

benefit of that material which has now been the land adjoining the mosque shown in the sketch
assessed by this Court in the earlier map by letters E F G H is a public Muslim

412
graveyard as specified in para 2 of the plaint may Oudh. After the annexation of Oudh, the British
be decreed. Government continued the ‗cash

(b) That in case in the opinion of the Court delivery PART O

of possession is deemed to be the proper remedy, a
decree for delivery of possession of the mosque 708
and graveyard in suit by removal of the idols and
nankar‘ until 1864 by revenue free grants in the
other articles which the Hindus may have placed in
villages of Sholapur and
the mosque as objects of their worship be passed in
plaintiff‘s favour, against the defendants. Bahoranpur in the vicinity of Ayodhya.
(bb) That the statutory Receiver be commanded to
hand over the property in dispute described in the 600. The plaint alleged that outside the main
Schedule ‗A‘ of the Plaint by removing the building of the mosque, Hindu
unauthorised structures erected thereon.‖
worship was being conducted at a Chabutra
[Note: Prayer (bb) was inserted by an amendment admeasuring 17 x 21 feet on which
to the plaint pursuant to the
there was a small wooden structure in the form of a
order of the High Court dated 25 May 1995]. tent. The plaint contains a

The suit is based on the averment that in Ayodhya, recital of the Suit of 1885 instituted by Mahant
there is an ancient historic Raghubar Das for permission to

mosque known commonly as Babri Masjid which build a temple on the Chabutra together with a
was constructed by Babur more reference to the dismissal of the

than 433 years ago following his conquest of India suit. According to the plaintiffs, Mahant Raghubar
and the occupation of its Das sued on behalf of himself,

territories. It has been averred that the mosque was the Janmasthan and the whole body of persons
built for the use of the interested in it. The Mutawalli of

Muslims in general as a place of worship and for Babri Masjid was made a defendant.
the performance of religious
According to the plaintiffs, the decision in the suit
ceremonies. The main construction of the mosque operates as res judicata on the
is depicted by the letters A B
ground that the matter directly and substantially in
C D on the plan annexed to the plaint. Adjoining issue was:
the land is a graveyard.
(i) The existence of Babri Masjid; and
According to the plaintiffs, both the mosque and
the graveyard vest in the (ii) The rights of Hindus to construct on the land
adjoining the mosque.
Almighty and since the construction of the mosque,
it has been used by the The plaint contains a reference to the riots of 1934
and to the restoration of the
Muslims for offering prayers while the graveyard
has been used for burial. It has portions of the mosque which were damaged, at the
cost of the government.
been averred that a cash grant was paid from the
royal treasury for the upkeep According to the plaintiffs, following the
enactment of the UP Muslim Waqfs Act
and maintenance of the mosque, which was
continued by the Nawab Wazir of 1936, an enquiry was conducted by the
Commissioner of Waqfs and the report of

413
the Commissioner was published in the official was amended following the demolition of Babri
gazette. The plaintiffs claimed that Masjid to place subsequent facts

Muslims have been in peaceful possession of the and events on the record. According to the
mosque which was used for plaintiffs, a mosque does not require

prayer until 23 December 1949 when a crowd of any particular structure and even after the
Hindus is alleged to have demolition of the mosque, the land on

PART O which it stood continues to remain a mosque in

which Muslims are entitled to
709
offer prayers. The plaint adverts to the acquisition
entered the mosque and desecrated it by placing of the land under
idols inside. According to the
the Acquisition of Certain Areas of Ayodhya Act
plaintiffs, assuming without admitting that there 1993.
existed a Hindu temple as alleged
According to the plaintiffs, the cause of action for
by the defendants on the site of which the mosque the suit arose on 23 December
was built 433 years ago by
1949 when the Hindus are alleged to have
Emperor Babur, the Muslims by virtue of their wrongfully entered the mosque and
long, exclusive and continuous
PART O
possession commencing from the construction of
the mosque and ensuing until 710

its desecration, perfected their title by adverse desecrated it by placing idols inside the mosque.
possession. The plaint then The injuries are claimed to be

proceeds to make a reference to the proceedings continuing in nature. As against the state, the cause
under Section 145 and to the of action is alleged to have

institution of civil suits before the Civil Judge at arisen on 29 December 1949 when the property
Faizabad. As a result of the order was attached by the City

of injunction in Suit 2 of 1950, Hindus have been Magistrate who handed over possession to the
permitted to perform puja of the receiver. The respondent

idols placed within the mosque but Muslims have assumed charge on 5 January 1950.
been prevented from entering.
The reliefs which have been claimed in the suit are
It has been averred that the suit has been instituted based on the above
on behalf of the entire
averments. Essentially, the case of the plaintiffs
Muslim community together with an application proceeds on the plea that:
under Order I Rule 8 of the CPC.
(i) The mosque was constructed by Babur 433
601. It has been stated that the receiver who is in years prior to the suit as a
possession holds the property
place of public worship and has been continuously
for the real owner and the plaintiffs would be used by Muslims for
entitled to possession if the suit
offering prayers; and
succeeds. Alternatively, a plea for possession has
also been made. The plaint

414
(ii) Even assuming that there was an underlying have been in the peaceful possession of the mosque
temple which was in which prayers were

demolished to give way for the construction of the recited till 23 December 1949. The alternate plea is
mosque, the Muslims that assuming (without

have perfected their title by adverse possession. On admitting) that there existed a Hindu temple as
this foundation, the alleged by the Hindus on the site

plaintiffs claim a declaration of title and, in the on which the mosque was built, the Muslims by
event that such a prayer is virtue of their long, exclusive and

required, a decree for possession. continuous possession beginning from the time
when the mosque was built and
602. Suit 4 was instituted on 18 December 1961 by
the Sunni Central Waqf continuing until it was desecrated (by the placing
of idols) perfected their title by
Board and nine Muslims resdients of Ayodhya.
Defendant no 1 in Suit 4 is Gopal adverse possession and ―the right, title or interest
of the temple and of the Hindu
Singh Visharad; defendant no 2 is Ram Chander
Dass Param Hans; defendant public if any, extinguished‖. The claim of
possession is hence based on the plea
no 3 is Nirmohi Akhara; defendant no 4 is Mahant
Raghunath Das; defendant no that there has been a continuous use of the mosque
for offering prayers since its
5 is the State of U.P.; defendant no 6 is the
Collector, Faizabad; defendant no 7 inception and that this use has been long,
continuous and exclusive.
is the City Magistrate, Faizabad; defendant no 8 is
the Superintendent of Police O.2 Written statements

of Faizabad; defendant no 9 is Priyadutt Ram; Gopal Singh Visharad

defendant no 10 is the President,
604. In the written statement filed by Gopal Singh
PART O Visharad, the first defendant

711 (who is also the plaintiff in Suit 1), it has been

stated that if the Muslims were in
Akhil Bharat Hindu Mahasabha; defendant no 13 is
Dharam Das; defendant no possession of the mosque, it ceased in 1934. The
Hindus claim to be in
17 is Ramesh Chandra Tripathi; and defendant no
20 is Madan Mohan Gupta. possession after 1934 and their possession is stated
to have ripened into
603. Now with these principles in mind, it is
necessary to carefully scrutinise the PART O

pleadings in Suit 4 in regard to the assertion of 712

possession. The plea in
adverse possession. According to the written
paragraph 2 of the plaint is that the mosque has statement, no prayers were offered
since the time of its construction
in the mosque since 1934. Moreover, no individual
by Babur been used by the Muslims for offering Hindu or Mahant can be said
prayers and that the Muslims

415
to represent the entire Hindu community. Hindu PART O
puja is stated to be continuing
713
inside the structure, which is described as a temple
since 1934 and admittedly judicially recognised in the Suit of 1885. It was
urged that the Janmabhumi
since January 1950, following the order of the City
Magistrate. In an additional temple was always in the possession of Nirmohi
Akhara and none else but the
written statement, a plea has been taken that the UP
Muslim Waqfs Act 1936 is Hindus were allowed to enter and offer worship.
The offerings are stated to have
ultra vires. It has been averred that any
determination under the Act cannot been received by the representative of Nirmohi
Akhara. After the attachment,
operate to decide a question of title against non-
Muslims. In a subsequent written only the pujaris of Nirmohi Akhara are claimed to
have been offering puja to the
statement, it has been stated that Hindus have
worshipped the site of the idols in the temple. The written statement contains
a denial of Muslim worship in
Janmabhumi since time immemorial; the Muslims
were never in possession of the structure at least since 1934 and it is urged that
Suit 4 is barred by limitation.
the Janmabhumi temple and, if they were in
possession, it ceased in 1934. The In the additional written statement, Nirmohi
Akhara has denied that the findings in
suit is alleged to be barred by limitation.
the Suit of 1885 operate as res judicata. There is a
As regards the Suit of 1885, it has been submitted denial of the allegation that
that the plaintiff was not suing
the Muslims have perfected their title by adverse
in a representative capacity and was only pursuing possession.
his personal interest;
State of Uttar Pradesh
Nirmohi Akhara
606. The State of Uttar Pradesh filed its written
605. The written statement of Nirmohi Akhara statement to the effect that the
denies the existence of a
government is not interested in the property in
mosque. Nirmohi Akhara states that it was unaware dispute and does not propose to
of any suit filed by Mahant
contest the suit.
Raghubar Das. According to it, a mosque never
existed at the site and hence Akhil Bhartiya Hindu Mahasabha

there was no occasion for the Muslim community 607. In the written statement filed on behalf of the
to offer prayers till 23 tenth defendant, Akhil

December 1949. It is urged that the property Bhartiya Hindu Mahasabha, it has been averred
described as Babri mosque is and that upon India regaining

has always been a temple of Janmabhumi with independence, there is a revival of the original
idols of Hindu Gods installed Hindu law as a result of which the

within. According to the written statement, the plaintiffs cannot claim any legal or constitutional
temple on Ramchabutra had been right. In an additional written

416
statement, the tenth defendant denies the incident broadly follow similar lines. Replications were
of 22 December 1949 and filed to the written statements of

claims that the idols were in existence at the place the Hindu parties.
in question from time
PART O
PART O
715
714
O.3 Issues and findings of the High Court
immemorial. According to the written statement,
the site is the birth-place of Lord 609. 1 Whether the building in question described
as mosque in the
Ram and no mosque could have been constructed
at the birth-place. sketch map attached to the plaint was a mosque as
claimed by the
Abhiram Das and Dharam Das
plaintiffs. If the answer is in the affirmative-
608. The written statement by Abhiram Das and by
Dharam Das, who claims to (a) When was it built and by whom whether by
Babar as
be his chela, questions the validity of the
construction of a mosque at the site of alleged by the plaintiffs or by Mir Baqi as alleged
by
Ram Janmabhumi. According to the written
statement, the site is landlocked and defendant no 13;

surrounded by places of Hindu worship and hence (b) Whether the building had been constructed on
such a building cannot be a the site of

valid mosque in Muslim law. The written statement an alleged Hindu temple after demolishing the
contains a denial of a valid same as

waqf on the ground that a waqf cannot be based on alleged by defendant no 13; If so, its effect
adverse possession.
 Justice S U Khan - The construction of a
According to the written statement, at Ram mosque took place
Janmabhumi there was an ancient
by or under the orders of Babur. Whether it was
temple tracing back to the rule of Vikramaditya actually built
which was demolished by Mir
by Mir Baqi or someone else is not material.
Baqi. It has been averred that Ram Janmabhumi is Muslims offered
indestructible as the deity is
regular prayers until 1934, after which until 22
divine and immortal. In spite of the construction of December
the mosque, it has been
1949, only Friday prayers were offered. This is
submitted, the area has continued to be in the sufficient for
possession of the deities and no
continuous possession and use. No temple was
one could enter the three-domed structure except demolished
after passing through Hindu
for the construction of the mosque. Until the
places of worship. The written statements filed by mosque was
the other Hindu defendants

417
constructed during the period of Babur, the on 6 December 1992, it is no longer necessary to
premises were not decide the

believed to be or treated as the birth-place of Lord question of identification of the property.

Ram.
 Justice Sudhir Agarwal – Though the building is
 Justice Sudhir Agarwal - Answered in favour of shown to
the plaintiffs.
be situated on Nazul plot number 583 of the Khasra
1(a): Answered in the negative – plaintiffs have of 1931
failed to prove
of Mohalla Kot Ram Chandra, it will not impact
the construction of the structure by Babur. In the upon the claim
absence of
of the two communities since the State of Uttar
PART O Pradesh has

716 not staked any claim, having filed a written

statement of no
pleadings and evidence, no certain finding can be
returned on contest.

who had constructed the structure but an informed  Justice D V Sharma - The property existed on
guess is Nazul plot

that it was constructed during the regime of number 583 of Khasra of 1931 belonging to the
Aurangzeb (1659 government.

1707 A.D.). PART O

1(b) – Answered in the affirmative. 717

 Justice D V Sharma - Issue Nos 1 and 1(a) 1-B(b) Whether the building stood dedicated to
answered almighty God as

against the plaintiffs. alleged by the plaintiffs.

Issue 1(b) answered in favour of the defendants on  Justice S U Khan - The mosque was a valid
the basis mosque.

of the ASI Report.  Justice Sudhir Agarwal - Not answered, being

irrelevant.
1(b)(a) Whether the building existed at Nazul plot
no.583 of the Khasra  Justice D V Sharma - Answered against the
plaintiffs.
of the year 1931 of Mohalla Kot Ram Chandra
known as Ram 1-B(c) Whether the building had been used by the
members of the
Kot, City Ayodhya (Nazul estate?) Ayodhya. If so
its effect Muslim community for offering prayers from time
immemorial.
thereon.
If so, its effect.
 Justice S U Khan - Following the demolition of
the structure  Justice S U Khan - Until 1934, the mosque
which was

418
constructed by or under the orders of Babur was  Justice Sudhir Agarwal and Justice D V Dharma
being used - The suit

for regular prayers by Muslims. From 1934 until 22 is barred by limitation.

December
4 Whether the Hindus in general and the devotees
1949, only Friday prayers were conducted but this of 'Bhagwan
is sufficient
Sri Ram in particular have perfected right of
to indicate continuance of possession and use. prayers at the site

 Justice Sudhir Agarwal - Since both the parties by adverse and continuous possession as of right
were using for more

the structure in accordance with their respective than the statutory period of time by way of
forms of prescription as

worship, belief and faith for 80 years prior to the alleged by the defendants.
institution of
 Justice S U Khan - Both parties held to be joint
the first suit, the inner courtyard and the building title-holders
were not
in possession since prior to 1885 and hence it is not
restricted for use by one community.
necessary to decide the question of adverse
 Justice D V Sharma – Answered against the possession.
plaintiffs.
 Justice Sudhir Agarwal - Since 1856-57, the
2 Whether the plaintiffs were in possession of the outer courtyard
property in
has not been used or possessed by Muslims but the
suit upto 1949 and were dispossessed from the inner
same in 1949
courtyard has been used by both parties.
as alleged in the plaint.
 Justice D V Sharma - Decided against the
PART O plaintiffs.

718 PART O

 Justice S U Khan - Title follows possession. 719

Hence, both
5 (a) Are the defendants estopped from
parties held to be joint title-holders in possession of challenging the character of
the
property in suit as a waqf under the administration
premises in dispute. of plaintiff

 Justice Sudhir Agarwal and Justice D V Sharma No.1 in view of the provision of Section 5(3) of
- U.P. Act 13 of

Answered against the plaintiffs 1936. (This issue has already been decided in the
negative
3 Is the suit within time.
vide order dated 21.4.1966 by the learned Civil
 Justice S U Khan - The suit is not barred by Judge)
limitation.

419
 Justice S U Khan - In the absence of any 1936 does not hit the defence of the defendants of
specific finding, he has the leading case.

stated that he is in agreement with Justice Sudhir  Justice D V Sharma - Decided in the negative
Agarwal. by the order dated

 Justice Sudhir Agarwal and Justice D V Sharma 21 April 1966.

- The issue has
5 (d) Are the said provisions of Act XIII of 1936
been answered against the plaintiffs by the order of ultra-vires as alleged
the Civil Judge
in written statement. (This issue was not pressed by
dated 21 April 1966. counsel

5 (b) Has the said Act no application to the right of for the defendants, hence not answered by the
Hindus in learned Civil

general and defendants in particular, to the right of Judge, vide his order dated 21 April 1966).
their
 Justice S U Khan - In the absence of any
worship. specific finding, he has

 Justice S U Khan - In the absence of any stated that he is in agreement with Justice Agarwal.
specific finding, he has
 Justice Sudhir Agarwal and Justice D V Sharma
stated that he is in agreement with Justice Agarwal. - Issue 5(d) has

 Justice Sudhir Agarwal and Justice D V Sharma not been pressed.

- Decided in
5 (e) Whether in view of the findings recorded by
favour of the defendants and the Hindu parties, the learned Civil
against the plaintiffs.
Judge on 21 April 1996 on issue no.17 to the effect
5 (c) Were the proceedings under the said Act that, "No
conclusive. (This
valid notification under section 5(1) of the Muslim
issue has already been decided in the negative vide Waqf Act
order dated
(No. XIII of 1936) was ever made in respect of the
21 April 1996 by the learned Civil Judge). property in

 Justice S U Khan - In the absence of any dispute", the plaintiff Sunni Central Board of Waqf
specific finding, he has has no right

stated that he is in agreement with Justice Agarwal. to maintain the present suit.

PART O  Justice S U Khan - In the absence of any

specific finding, he has
720
stated that he is in agreement with Justice Agarwal.
 Justice Sudhir Agarwal - Decided by the order
of the civil judge  Justice Sudhir Agarwal - Decided in favour of
the plaintiffs subject
dated 21 April 1966 that the bar of Section 5(3)
under UP Act XIII of to issue 6 in Suit 3 which has also been decided in
favour of the

420
defendants. principles of Section 11 of CPC, since virtually
nothing was decided
PART O
in the suit.
721
PART O
 Justice D V Sharma - Decided against the
plaintiffs. 722

5 (f) Whether in view of the aforesaid finding, the  Justice Sudhir Agarwal - Answered in the
suit is barred on negative. The Suit of

account of lack of jurisdiction and limitation as it 1885 was not filed by Mahant Raghubar Das on
was filed after behalf of the

commencement of the U P Muslim Waqf Act, Janmasthan and the whole body of persons
1960. interested in it.

 Justice S U Khan - In the absence of any  Justice D V Sharma - Decided against the
specific finding, he has plaintiffs.

stated that he is in agreement with Justice Agarwal. 7 (b) Whether Mohammad Asghar was the
Mutawalli of alleged Babri
 Justice Sudhir Agarwal - Answered in the
negative in favour of the Masjid and did he contest the suit for and on behalf
of any such
plaintiffs and against the defendants.
mosque.
6 Whether the present suit is a representative suit,
plaintiffs  Justice Sudhir Agarwal - Decided in favour of
the plaintiffs.
representing the interest of the Muslims and
defendants  Justice D V Sharma - Decided against the
plaintiffs.
representing the interest of the Hindus.
7 (c) Whether in view of the judgment in the said
 Justice S U Khan - In the absence of any suit, the members
specific finding, he has
of the Hindu community, including the contesting
stated that he is in agreement with Justice Agarwal. defendants,

 Justice Sudhir Agarwal - Answered in the are estopped from denying the title of the Muslim
affirmative. community,

 Justice D V Sharma - Decided in favour of the including the plaintiffs of the present suit, to the
plaintiffs. property in

7 (a) Whether Mahant Reghubar Das, plaintiff of dispute. If so, its effect.
Suit No.61/280 of
 Justice Sudhir Agarwal - Decided in the
1885, had sued on behalf of Janmasthan and whole negative.
body of
 Justice D V Sharma - Decided against the
persons interested in it. plaintiffs.

 Justice S U Khan - The decision in Suit of 1885 7 (d) Whether in the aforesaid suit, title of the
does not attract the Muslims to the

421
property in dispute or any portion thereof was  Justice S U Khan - No temple was demolished
admitted by for constructing the

plaintiff of that suit. If so, its effect. mosque. Until the mosque was constructed during
the period of
 Justice Sudhir Agarwal - Answered in the
negative. There was no Babur, the premises in dispute were not treated or
believed to be the
admission by the plaintiff in the Suit of 1885 about
the title of the birth-place of Lord Ram.

Muslims to the property in dispute.  Justice Sudhir Agarwal - The place of birth
believed in and
 Justice D V Sharma - Decided against the
plaintiffs. worshipped by the Hindus is the area covered
under the central
PART O
dome of the disputed structure in the inner
723 courtyard

8 Does the judgment in Suit No.61/280 of 1885,  Justice D V Sharma - Decided against the
Mahant Raghubar plaintiffs.

Das Vs. Secretary of State and others, operate as PART O

res judicata
724
against the defendants in suit.
12 Whether idols and objects of worship were
 Justice Sudhir Agarwal - Answered in the placed inside the
negative.
building in the night intervening 22nd and 23rd
 Justice D V Sharma - Decided against the December 1949
plaintiffs; the judgment
as alleged in paragraph 11 of the plaint or they
will not operate as res judicata. have been in
10 Whether the plaintiffs have perfected their existence there since before. In either case the
rights by adverse effect.

possession as alleged in the plaint.  Justice S U Khan - Idols were kept on the pulpit
inside the
 Justice S U Khan - Both parties are in joint
possession before constructed portion of the mosque for the first time
during the night
1885. Hence, there is no need to determine the
issue of adverse between 22/23 December 1949.

possession.  Justice Sudhir Agarwal - The plaintiffs have

failed to prove that the
 Justice Sudhir Agarwal and Justice D V Sharma
- Answered idols and objects were placed inside the building
during the night
against the plaintiffs and Muslims.
intervening 22/23 December 1949. The idols and
11 Is the property in suit the site of Janam Bhumi
objects existed
of Sri Ram

Chandraji.

422
even prior to 22 December 1949 in the outer  Justice S U Khan - No temple was demolished
courtyard. The issue is for constructing the

answered in the negative. mosque. Until the construction of the mosque

during the period of
 Justice D V Sharma - The plaintiffs have failed
to prove that the Babur, the premises were neither treated nor
believed to be the
idols and objects of worship were installed in the
building in the night birth-place of Lord Ram.

intervening 22/23 December 1949.  Justice Sudhir Agarwal - Answered in the

affirmative.
13 Whether the Hindus in general and defendants
in particular had  Justice D V Sharma - Decided against the
plaintiffs.
the right to worship the ‗Charans‘ and 'Sita Rasoi'
and idols and 15 Whether the Muslims been in possession of
the property in
objects of worship, if any, existing in or upon the
property in suit from 1528 A.D. continuously, openly and to
the knowledge
suit.
of the defendants and Hindus in general. If so, Its
 Justice S U Khan - Title follows possession and effect.
both parties were
 Justice S U Khan -There is no need to decide the
joint title-holders in possession of the premises in question of
dispute.
adverse possession since both parties are joint title-
 Justice Sudhir Agarwal - Hindus in general had holders in
been entering the
possession.
premises within the inner courtyard as a matter of
right for several  Justice Sudhir Agarwal and Justice DV Sharma
- Answered
centuries, hence the issue is answered in the
affirmative. against the plaintiffs and the Muslims.

PART O 16 To what relief, if any are the plaintiffs or any of

them, entitled.
725
 Justice S U Khan - In the absence of any
 Justice DV Sharma - Decided against the specific finding, he has
plaintiffs.
stated that he is in agreement with Justice Agarwal.
14 Have the Hindus been worshipping the place
in dispute as Sri PART O

Ram Janam Bhumi or Janam Asthan and visiting it 726

as a sacred
 Justice Sudhir Agarwal - The suit is liable to be
place of pilgrimage as of right since time dismissed as
immemorial. If so, its
being barred by limitation.
effect.

423
 Justice D V Sharma - The plaintiffs are not PART O
entitled to any relief and
727
the suit is dismissed.
Bhumi continued to exist on the property in suit as
17 Whether a valid notification under section 5 (1) alleged on
of the U.P.
behalf of defendant no 13 and the said places
Muslim Waqf Act No. XIII of 1936 relating to the continued to be
property in suit
visited by devotees for purpose of worship. If so
was ever done. If so, its effect. (This issue has whether the
already been
property in dispute continued to vest in the said
decided by the learned Civil Judge by order dated deities.
21.04.1966)
 Justice S U Khan - No temple was demolished
 Justice S U Khan - In the absence of any for constructing the
specific finding, he has
mosque. Until the mosque was constructed during
stated that he is in agreement with Justice Agarwal. the period of

 Justice Sudhir Agarwal and Justice D V Sharma Babur, the premises were neither believed nor
- Decided by the treated to be the

order dated 21 April 1966 of the Civil Judge. birth-place of Lord Ram.

18 What is the effect of the judgment of the  Justice Sudhir Agarwal - The premises which
Supreme Court in are believed to the

Gulam Abbas and others v State of UP and others, place of birth of Lord Ram continued to vest in the
(A.I.R. 1981 deity. Hindu

Supreme Court 2198) on the finding of the learned religious structures in the outer courtyard cannot be
Civil Judge held to be the

recorded on 21st April, 1966 on issue no 17. property of the plaintiffs.

 Justice S U Khan - In the absence of any  Justice D V Sharma - Decided against the
specific finding, he has plaintiffs.

stated that he is in agreement with Justice Agarwal. 19(b) Whether the building was land-locked and
cannot be reached
 Justice Sudhir Agarwal - The decision of the
Supreme Court does except by passing through places of Hindu
worship. If so, its
not affect the findings on issue 17.
effect.
 Justice DV Sharma - Decided against the
plaintiffs.  Justice S U Khan - In the absence of any
specific finding, he has
19(a) Whether even after construction of the
building in suit, deities stated that he is in agreement with Justice Agarwal.

of Bhagwan Sri Ram Virajman and the Asthan Sri  Justice Sudhir Agarwal - Answered in the
Ram Janam affirmative to the extent

424
that the building was land-locked and could not be worship. The Hindus have been doing that since
reached except time immemorial.

by passing through places of Hindu worship. 19(d) Whether the building in question could not
However, this by itself be a mosque under

is of no consequence. the Islamic law in view of the admitted position

that it did not
 Justice D V Sharma - Decided against the
plaintiffs. have minarets.

PART O  Justice S U Khan - It cannot be said that the

mosque was not a
728
valid mosque.
19(c) Whether any portion of the property in suit
was used as a place  Justice Sudhir Agarwal - Answered in favour of
the plaintiffs.
or worship by the Hindus immediately prior to the
construction  Justice D V Sharma - Decided against the
plaintiffs.
of the building in question. If the finding is in the
affirmative, PART O

whether no mosque could come into existence in 729

view of the
19(e) Whether the building in question could not
Islamic tenets at the place in dispute. legally be a mosque

 Justice S U Khan - No temple was demolished as on plaintiffs own showing it was surrounded by
for constructing the a grave-yard

mosque. Until the mosque was constructed during on three sides?

the period of

Babur, the premises were neither believed nor

treated to be the  Justice S U Khan - It cannot be said that the
mosque was not a
birth-place of Lord Ram.
valid mosque.
 Justice Sudhir Agarwal - Hindus were
worshiping at the place in  Justice Sudhir Agarwal - Answered in favour of
the plaintiffs.
dispute before the construction of the disputed
structure. However,  Justice D V Sharma - Decided against the
plaintiffs.
insofar as the second part is concerned, it has no
relevance, being 19(f) Whether the pillars inside and outside the
building in question
hypothetical.
contain images of Hindu Gods and Goddesses. If
 Justice D V Sharma - The property in suit is the the finding is
site of
in affirmative, whether on that account the building
Janmabhumi of Lord Ram and the defendants had a in question
right to

425
cannot have the character of mosque under the not maintainable so far as it relates to relief for
tenets of Islam. possession.

 Justice S U Khan - No temple was demolished  Justice S U Khan – In the absence of any
for constructing the specific finding, he has

mosque. Until the construction of the mosque, the stated that he is in agreement with Justice Agarwal.
premises were
 Justice Sudhir Agarwal - At the time of the
neither treated nor believed to be the birth-place of attachment of the
Lord Ram.
building, there was a mutawalli and in the absence
 Justice Sudhir Agarwal - The first part is of whom relief of
answered in the
possession cannot be allowed to the plaintiffs in
affirmative. The second part is redundant and left their capacity as
unanswered. In
worshippers.
the ultimate result, the issue is answered in favour
of the plaintiffs.  Justice D V Sharma - The suit is held not to be
maintainable.
 Justice D V Sharma - Decided against the
plaintiffs. 21 Whether the suit is bad for non-joinder of
alleged deities.
20(a) Whether the waqf in question cannot be a
Sunni Waqf as the  Justice S U Khan - Though, the deity is not a
defendant, the suit
building was not allegedly constructed by a Sunni
cannot be dismissed on this ground as the deity is
Mohammedan but was allegedly constructed by sufficiently
Mir Baqi who
represented.
was allegedly a Shia Muslim and the alleged
Mutawallis were  Justice Sudhir Agarwal - Answered in favour of
the plaintiffs.
allegedly Shia Mohammedans. If so, its effect.
 Justice D V Sharma - Decided against the
PART O plaintiffs.

730 PART O

 Justice S U Khan -It cannot be said that the 731

mosque was not a
22 Whether the suit is liable to be dismissed with
valid mosque. special costs.

 Justice Sudhir Agarwal - Irrelevant and not  Justice S U Khan – In the absence of any
answered. specific finding, he has

 Justice D V Sharma - Decided against the stated that he is in agreement with Justice Agarwal.
plaintiffs.
 Justice Sudhir Agarwal - No special costs need
20(b) Whether there was a Mutawalli of the alleged to be awarded.
Waqf and whether
 Justice D V Sharma - The plaintiffs are not
the alleged Mutawalli, not having joined in the suit, entitled to any relief: the
the suit is

426
suit is dismissed with easy costs. 25 Whether on the demolition of the dispute
structure as claimed
23 Is the Waqf Board an instrumentality of State. If
so, whether the by the plaintiff, it can still be called a mosque and
if not
Board can file a suit against the State itself.
whether the claim of the plaintiffs is liable to be
 Justice S U Khan - In the absence of any dismissed as
specific finding, he has
no longer maintainable.
stated that he is in agreement with Justice Agarwal.
 Justice S U Khan - In the absence of any
 Justice Sudhir Agarwal - Neither is the Waqf specific finding, he has
Board an
stated that he is in agreement with Justice Agarwal.
instrumentality of the State nor is there any bar to
the filing of the  Justice Sudhir Agarwal - Suit 4 cannot be held
to be not
suit by the Waqf Board against the State.
maintainable as a result of the demolition of the
 Justice D V Sharma - The suit is not disputed structure.
maintainable.
 Justice D V Sharma - Decided against the
24 Is the Waqf Board ‗State‘ under Article 12 of plaintiffs.
the Constitution? If
26 Whether Muslims can use the open site as
so, can the said Waqf Board being state file any mosque to offer
suit in a
prayer when the structure which stood thereon has
representative capacity sponsoring the case of been
particular
demolished.
community and against the interest of another
community.  Justice S U Khan - In the absence of any
specific finding, he has
 Justice S U Khan – In the absence of any
specific finding, he has stated that he is in agreement with Justice Sudhir
Agarwal.
stated that he is in agreement with Justice Sudhir
Agarwal.  Justice Sudhir Agarwal - Suit 4 cannot be held
not to be
 Justice Sudhir Agarwal - Neither is the Sunni
Central Waqf Board maintainable as a result of the demolition of the
disputed structure.
an instrumentality of the State nor is there any bar
to the filing of a  Justice D V Sharma - Decided against the
plaintiffs.
suit by the Waqf Board against the State.
27 Whether the outer courtyard contained
PART O Ramchabutra, Bhandar

732 and Sita Rasoi. If so whether they were also

demolished on 6
 Justice D V Sharma - The suit is not
maintainable. December 1992 along with the main temple.

PART O

427
733 734

 Justice S U Khan - Ramchabutra came into The basis on which the High Court directed this
existence before the three-fold division was its finding

visit of Tieffenthaler (1766-1771 A.D.) but after of joint possession. Justice D V Sharma decreed the
the construction of entire property to the

the mosque (1528 A.D.). plaintiffs in Suit 5.

 Justice Sudhir Agarwal - All parties admitted The common thread that runs through the judgment
that the three of Justice S U Khan is that

structures were demolished on 6 December 1992 Muslims and Hindus were in joint possession and
when the disputed since under Section 110 of the

structure was demolished. Hence, answered in the Evidence Act title follows possession, both were
affirmative. joint title-holders of the premises

 Justice D V Sharma - Decided in the in dispute.

affirmative.
610. The basis of Justice Sudhir Agarwal‘s
28 Whether the defendant no 3 has ever been in judgment can be delineated thus:
possession of the
(i) Muslims did not have possession of the outer
disputed site and the plaintiffs were never in its courtyard at least from 1856
possession.
57 when the dividing railing was raised by the
 Justice S U Khan - Both parties are joint title- British. Muslims have had at
holders in possession
best, only a right of passage through the outer
of the premises in dispute. courtyard;

 Justice Sudhir Agarwal - The plaintiffs have (ii) The possession of the Hindus over the outer
failed to prove their courtyard was open and to

possession of the outer and inner courtyards the knowledge of the Muslims. This is evidenced
including the disputed by the documents of 1858

building. which indicate that the Mutawalli of the mosque

had made several
 Justice D V Sharma - Decided against the
plaintiffs. complaints, in spite of which the structures
continued in the premises as
The view of the High Court
did the entry and worship of the Hindus in the outer
Two of the three judges of the High Court (Justice courtyard;
SU Khan and Justice Sudhir
(iii) There is no evidence of the Muslims being in
Agarwal) directed a three-way division of the possession of the property in
disputed premises:
dispute. While it cannot be held that the Muslims
―1/3rd each to the Muslim parties, plaintiffs of did not visit the inner
suit 5 and Nirmohi Akhara.‖
courtyard at all or that no namaz was offered till
PART O 1949, that by itself will not

428
amount to possession in law. There was a exclusive possession up to 1949, both the
beneficial enjoyment by the communities were in

Muslims with the Hindus and the Muslims thus possession of the inner courtyard;
visited the inner courtyard
(vii) The outer courtyard was not in the possession
for worshipping in their own way; of the Muslims as of 1949

PART O and even prior thereto. Insofar as the inner

courtyard is concerned, the
735
Muslims have discontinued their possession from
(iv) Though there is a claim of the plaintiffs that 23 December 1949.
since regular namaz was
Prior thereto, the possession of the inner courtyard
offered in the inner courtyard, the receiver would was enjoyed by both
have recovered requisite
Hindus and Muslims; and
material relatable to its use, no such material was
found, leading to the (viii) Hindu religious structures existed in the outer
courtyard since sometime
inference that none existed. This weakens the claim
of the Muslims to after 1856-7 and were being managed and
administered by the priests of
exclusive possession in the form of continuous
worship; PART O

(v) The Muslims did not abandon the property in 736

dispute. They continued to
Nirmohi Akhara. Therefore, to the extent of the
exercise a claim over it, getting it recognised by the outer courtyard, the
British government in
disputed site can be said to have been in possession
the form of a grant for upkeep and maintenance. of the Nirmohi
The maintenance of the
Akhara while the Muslims ceased to have
building to the extent of the disputed structure and possession over it. The inner
the partition wall is
courtyard was not in the exclusive possession of
evident as is the entry of Muslims into the inner either of the parties and it
courtyard for namaz. While
was visited by members of both the communities
both the Hindus and Muslims visited the disputed without any obstruction.
property as worshippers,
In allowing the entirety of the claim of the
the only distinction was that Hindus visited the plaintiffs in Suit 5, Justice D V Sharma
entire property while
held:
Muslims were confined to the inner courtyard for
the purposes of offering (i) A mosque loses its sacred character upon being
adversely possessed by a
prayers;
non-Muslim. Muslims were not in possession over
(vi) While Muslims have failed to prove that the the suit property and
property in Suit 4 was in their
there is no reliable evidence to indicate that prayers
were offered by them

429
from time immemorial; and 612. In the plaint in Suit 4, the cause of action for
the institution of the
(ii) Muslims have not established exclusive and
continuous possession over proceedings is founded on the events which took
place on 23 December 1949,
the suit property from 1528 A.D. or that they
offered prayers in the disputed during the course of which idols were placed inside
the mosque by a crowd of
structure since time immemorial. On the other
hand, the Hindus have Hindus. The intent of doing so was to destroy,
damage and defile the mosque.
established exclusive possession over the inner
courtyard and that they Moreover, according to the plaintiffs, this act of
entry into the mosque and the
were visiting it for offering prayers.
placement of idols amounted to a desecration of the
Maintainability of Suit 4 mosque. This clearly

611. During the course of hearing, Mr Parasaran, emerges from the averments in paragraph 11 of the
learned Senior Counsel plaint:

objected to the maintainability of Suit 4 on the ―11. That the Muslims have been in peaceful
ground that the suit could have possession of the aforesaid mosque and used to
recite prayer in it, till 23.12.1949 when a large
only been instituted at the behest of a Mutawalli. It
crowd of Hindus, with the mischievous intention of
was urged that the Sunni
destroying, damaging or defiling the said mosque
Central Waqf Board had no locus to institute the and thereby insulting the Muslim religion and the
proceeding. There is no merit in religious feelings of the Muslims, entered the
mosque and descecrated the mosque by placing
the submission. Section 19(2) of the UP Muslim idols inside the mosque. The conduct of Hindus
Waqf Act 1960 specifically amounted to an offence punishable under Sections
147, 295 and 448 of the Indian Penal Code.‖
PART O
Linked to the above averment is the statement in
737 paragraph 23 which reads thus:

empowers the board to adopt measures for the ―23. That cause of action for the suit against the
recovery of property and to Hindu public arose on 23.12.1949 at Ajodhiya
District Faizabad within the jurisdiction of this
institute and defend suits relating to waqfs. Under
Hon‘ble Court when the Hindus unlawfully and
Section 3(2), the Board is
illegally entered the mosque and desecrated the
defined to mean the Sunni Central Waqf Board, or mosque
the Shia Central Waqf Board
PART O
constituted under the Act. Clearly, therefore in
738
terms of the statutory power, the
by placing idols in the mosque thus causing
Sunni Central Waqf Board has authority to institute
obstruction and interference with the rights of the
legal proceedings.
Muslims in general, of saying prayers and
O.4 Limitation in Suit 4 performing other religious ceremonies in the
mosque. The Hindus are also causing obstructions
Pleadings to the Muslims gang in the graveyard, (Ganj-
Shahidan) and reciting Fatiha to the dead persons
buried therein. The injuries so caused are

430
continuing injuries are the cause of action arising plea of limitation was also raised in paragraph 35
therefrom is renewed de-die-indiem and as against of the written statement, filed by
defendants 5 to 9 the cause of action arose to the
plaintiffs on 29.12.1949 the date on which the Nirmohi Akhara and Mahant Raghunath Das,
defendant No. 7 the City Magistrate Faizabad-cum- defendant nos 3 and 4; in
Ajodhiaya attached the mosque in suit and handed
paragraph 29 of the written statement of the Akhil
over possession of the same to Sri Priya Dutt Ram
Bharat Hindu Mahasabha,
defendant no. 9 as the receiver, who assumed
charge of the same on January 5, 1950. The State defendant no 10; and in the written statements of
government and its officials defendants 6 to 8 several other Hindu parties.
failed in their duty to prosecute the offenders and
safeguard the interests of the Muslims.‖ The tenth defendant filed a written statement on 15
February 1990 and denied
In the suit as it was originally filed, a declaration
was sought to the effect that the paragraph 23 of the plaint. In the additional pleas
raised in paragraphs 29 and 79,
property identified by the letters A B C D in the
map annexed to the plaint is a a specific plea was raised that the suit is barred by
limitation. Paragraph 79 of the
public mosque known as Babri Masjid and the land
adjoining it depicted by letters written statement reads thus:

E F G H is a public Muslim graveyard. Prayer (b) ―…79. That the suit as framed is a suit for
seeks a decree for the delivery declaration only and the relief for delivery of
possession is in the words that ―In case in the
of possession of the mosque and graveyard, by opinion of the court …‖ which means that the
removing of the idols and other plaintiffs are not seeking relief of possession and
leave it to the court to grant possession suo motu.
articles of worship placed by the Hindus, ―in case
The reason is obvious that the suit was barred by
in the opinion of the Court
limitation and so specific prayer has not been
delivery of possession is deemed to be the proper made.‖
remedy‖. Prayer (bb) is for a
Paragraph 39 of the written statement was inserted
command to the statutory receiver to handover the pursuant to the order of the
property described in
court dated 23 November 1992. A replication was
Schedule ‗A‘ by removing the unauthorised filed to the amended written
structures. Prayer (bb) was brought in
statement of the tenth defendant but there was no
by way of an amendment on 25 May 1995. specific traverse of paragraph

Written statements 79 of the written statement.

613. The plea of limitation was specifically raised 614. The suit was presented and filed on 18
in several written statements, December 1961.

among them in paragraphs 27 and 28 of the written 615. The first plaintiff of Suit 4 was impleaded as
statements of the first and the ninth defendant to Suit 3

second defendants and paragraph 23 of the instituted by Nirmohi Akhara in pursuance of the
additional written statement. The order of the court dated 23

PART O August 1989. A statement was made on behalf of

the first plaintiff through
739

431
counsel that the written statements which were not a continuing wrong. Hence, the suit which was
already filed on behalf of filed on 18 December

PART O 1961 after the expiry of twelve years is barred by

limitation, albeit by 2
740
days.
defendant nos 1 to 5 in Suit 5 and defendant nos 6
to 8 in Suit 3 were being PART O

adopted. Sunni Central Waqf Board was also 741

impleaded as defendant no 10 in
Findings of the High Court
Suit 1 pursuant to the order of the court dated 7
January 1987. In paragraph 22 of 616. Dealing with the provisions of Section 145,
Justice Sudhir Agarwal held
the written statement filed by defendant nos 1 to 5
in Suit 1, it was specifically that the proceeding is not of a judicial nature nor
does the Magistrate deal with it
stated that namaz had been offered until 16
December 1949. Similarly, in as if it were a suit for immovable property. The
proceedings under Section 145
paragraph 26 of the written statement filed on
behalf of defendant nos 6 to 8 in would neither result in extension of limitation nor
is any exclusion provided for the
Suit 3 it was also stated that namaz had been
continuously offered till 16 purpose of computing limitation. The appointment
of a receiver by the magistrate
December 1949. Thus, for the purpose of the issue
of limitation, it is necessary to merely made the property custodia legis and is not
a dispossession within the
proceed on the basis that the last namaz was
offered on 16 December 1949. meaning of Article 142 of the Limitation Act. The
attachment of the property does

not either amount to the dispossession of the owner

Before the High Court, it was urged by learned
or a discontinuance of
Counsel appearing on behalf of
possession. Adverting to the decision of this Court
defendant no 20 that:
in Deokuer v Sheoprasad
(i) In a suit for declaration, Article 120 of the
Singh324, the High Court noted the principle that
Limitation Act 1908 is applicable
following an order of attachment
and even if the cause of action as set out in
under Section 145, the property is custodia legis;
paragraph 23 is taken as
since it is not in the possession
correct, the suit which was instituted after the
of any private individual, there is no need to seek a
expiry of six years is barred
relief for the restoration of
by limitation; and
possession and a declaration of title would be
(ii) Even if Article 120 is held to be inapplicable sufficient. Relief of possession is
and Articles 142 and 144 are
not required because no private defendant would be
held to apply, the cause of action arose on 16 in a position to deliver
December 1949 and was

432
possession to the plaintiff and the Magistrate holds had not set up the plea either that they were
possession during the period dispossessed or that their

of attachment for the party who is ultimately found possession was discontinued in categorical and
entitled to it upon adjudication. clear terms, the court could not

617. Having set out the position in law, Justice provide the deficiency by reading something which
Sudhir Agarwal held that the was not present in the

plaint in Suit 4 has no averment that the plaintiffs pleadings.

were dispossessed of the
618. Justice Sudhir Agarwal held that for the above
property which they had already possessed. On the reasons neither Article 47
contrary, the plea was that
nor Article 142 had any application. Dealing with
by the placement of idols inside the mosque, there the case under Article 120, the
was an act of desecration
learned judge noted that the cause of action arose
which interfered with the right of the plaintiffs to on 23 December 1949 and 29
worship. Moreover, the relief
December 1949. The suit was instituted beyond the
324 AIR 1966 SC 359 period of limitation of six

PART O years. Hence, whether the last namaz was held on

16 or 23 December 1949,
742
would be of no consequence. The date on which
which the plaintiffs sought was not for the the last namaz was held would
continuation of the right of worship but
have been of some significance if Article 120 was
a declaration of the status of the structure being a not to apply. In the absence of
mosque. The learned judge
the application of Articles 142 and 144, it was only
held that the pleadings did not bring the case under Article 120 which would be
Article 142 since the plea in
attracted, and the suit was held to be barred by
paragraph 23 of the plaint was not sufficient to limitation.
constitute a case of dispossession
PART O
or discontinuance of the possession of the plaintiffs
over the property in dispute. 743

The placement of idols inside the mosque, it was On whether there was a continuing wrong, Justice
held, did not constitute a Sudhir Agarwal held that if the

dispossession or discontinuance of possession since suit had been instituted for seeking relief against
these concepts the obstruction of the right of

contemplate a total deprivation of the person who worship it would probably have attracted the
was earlier in possession. principle of continuing wrong in

Obstruction or interference, it was held does not Section 23 of the Limitation Act 1908, particularly
constitute dispossession or in view of the decision of the

discontinuance of possession. Justice Sudhir Privy Council in Sir Seth Hukum Chand v Maharaj
Agarwal noted that if the plaintiffs Bahadur Singh325. However,

433
the suit had not been instituted to seek an Hence, the learned judge held that neither Article
enforcement of the right of worship but 142 nor Article 144 had any

for obtaining a declaration of status about the application. The learned judge also held that
nature of the building in dispute as though the suit had been instituted

a mosque and for delivery of possession in the in 1961, it was amended after 33 years (in 1995), to
capacity of possessory title seek possession and to bring

holders. Justice Sudhir Agarwal held that a it within the purview of Articles 142 and 144. On
distinction has to be made between a these grounds the suit was held

continuing wrong and continuing effects of a to be barred by limitation.

wrong. The facts pleaded by the
Justice S U Khan held to the contrary and was of
plaintiffs indicated that they were ousted from the the view that Suit 4 was within
disputed premises on 22/23
limitation. The learned judge indicated five reasons
December 1949 and the wrong was complete once for holding that Suits 3, 4, and
they had been dispossessed
5 were not barred by limitation which have already
from the property. On this ground, the learned been adverted to earlier.
judge held that the principle of
Thus, by a majority (Justice Sudhir Agarwal and
continuing wrong was not attracted. Justice Sudhir Justice D V Sharma), the suit
Agarwal held that the ouster
was held to be barred by limitation; Justice S U
of the plaintiffs was complete with the desecration Khan holding a contrary view on
of the mosque on 23
this issue.
December 1949 and hence the suit for the purpose
of limitation was governed by Submissions of counsel

Article 120. The suit was held to be barred by 619. During the course of the arguments before this
limitation. Court, Mr K Parasaran,

Justice D V Sharma held that the suit had been learned Senior Counsel appearing on behalf of the
instituted for seeking a plaintiffs in Suit 5, submitted

declaration after the attachment by the Magistrate that Suit 4 would be governed by Article 120 of the
under Section 145. The suit Limitation Act alone and that

seeking a declaration was not governed by the neither Articles 142 nor 144 would apply. This
principle of a continuing wrong submission is sought to be

and in view of the decision of the Privy Council in supported on the basis of the following
Raja Rajgan Maharaja Jagatjit propositions:

325(1933) 38 LW 306 (i) The primary relief which has been sought in Suit
(PC) 4 (prayer (a)) is a

PART O declaration that the property in dispute is a public

mosque and hence, the
744
suit does not seek a declaration for the enforcement
Singh v Raja Partab Bahadur Singh326, it was of the right of worship;
Article 120 that would apply.

434
 326 AIR 1942 PC 47 (vii) The case of the plaintiffs is that the injury
which was sustained was of a
PART O
continuing nature and not the wrong, which was
745 complete on the date of

(ii) When a suit is filed for a declaration of title to the desecration. The bar of limitation is sought to
property which is attached be overcome by alleging

under Section 145, it is not necessary to seek that the cause of action is renewed by virtue of a
further relief for the delivery continuing wrong;

of possession since the defendant is not in (viii) In the present case, there can be no question
possession and is not in a of a continuing wrong since

position to deliver possession. The property under the property was custodia legis. Hence, even
attachment being assuming (without admitting)

custodia legis, the receiver is bound to hand over PART O

possession to whoever is
746
held to be entitled as a result of the civil
adjudication; that the placement of the idols under the central
dome was a continuing
(iii) A prayer seeking possession was not necessary
since the property was wrong, it came to an end upon the attachment of
the property; and
custodia legis since December 1949 and the prayer
was introduced only to (ix) The cause of action arose when the idols were
placed in the inner
circumvent the period of limitation of six years
imposed by Article 120; courtyard. This arose even before the proceedings
under Section 145 and
(iv) Statutes of limitation are statutes of repose;
hence, the fact that the Magistrate has not passed
(v) The period of six years under Article 120 has any final order would
to be computed from the date
not lead to limitation ceasing to run.
when the right to sue accrues and there is no right
to sue unless there is Analysis

an accrual of the right asserted in the suit and an 620. Both the Limitation Act 1908 and its
infringement or a clear successor, the Limitation Act of 1963

and unequivocal intention to infringe the right; are statutes of repose. Extensions or exceptions to
limitation are stipulated in the
(vi) The cause of action as pleaded in paragraph 23
of the plaint is stated to statute. These provisions include:

have arisen on 23 December 1949 when the Hindus (i) Sections 4 – 11 (part II)
unlawfully entered the
(ii) Sections 12-25 (part III) dealing with
mosque and desecrated it by placing idols inside, computation of the period of limitation;
thus causing an
(iii) Section 26 (acquisition of the right of easement
interference in the offering of prayers by Muslims; in 20 years); and

435
(iv) Section 27 (modification of 20 years for a civil court, he would become entitled for
reversioner of servient possession and the Magistrate is duty

tenement). bound to hand over possession in accordance with

the order of the civil court. In
Article 47
the present case, absent any order respecting
621. Article 47 of the Limitation Act 1908 applies possession under Section 145,
to a suit by a person bound by
Article 47 on its plain terms has no application.
an order ―respecting the possession of
immoveable property‖ made under the Articles 120, 142, 144

Code of Criminal Procedure 1898 or the 622. The next limb of the submission on the basis
Mamlatdar‘s Court Act 1906 or by of which the bar of limitation

anyone claiming under such person to recover the has been urged, is that Suit 4 is governed by Article
property in the order. The 120. Now Article 120 deals

period of limitation is three years and time begins with suits for which no period of limitation is
to run from the date of the final provided elsewhere in the schedule.

PART O Article 120 is in the nature of a residuary provision.

Hence, where a specific
747
article in the schedule applies, the residuary article
order in the case. In order for Article 47 to apply, can possibly have no
the suit must meet the
application and it is only when the suit does not fall
description specified in the first column. In other within the description
words, Article 47 applies only in
specified in any other article that the residuary
a situation where a Magistrate has passed an order provision would govern.
respecting the possession of
PART O
immoveable property. When no order regarding
possession of immovable 748

property which is the subject matter of a 623. The two competing articles which have been
proceeding under Section 145 has been pressed-in-aid on behalf of

passed, the suit shall not be of the description the plaintiffs are Article 142 and, in the alternate,
specified in the first column. It is Article 144. Article 142 covers a

only if the Magistrate has passed such an order that suit for possession of immoveable property when
the suit would meet the the plaintiff has either been

description specified, and in which event Article 47 dispossessed while in possession of the property or
would govern. However, has discontinued the

though Article 47 is not attracted, a person possession. Dispossession postulates an act of an

aggrieved by the order of attachment involuntarily nature while

may file a suit for declaration of his right. On the discontinuance is more in the nature of a voluntary
determination of the right by the cessation of possession. In

436
the present case, the plaintiffs in Suit 4 have sought seeking possession is not necessary. But what this
a declaration that the submission misses is that a

property indicated by the letters A B C D is a suit seeking relief of possession has not been held
public mosque and that the land to lack maintainability. A

delineated by the letters E F G H is a Muslim declaration of title suffices because once property
graveyard. Beside this, the plaintiffs is custodia legis, possession

seek a prayer for the delivery of possession, in case would necessarily follow the grant of the
the court is of the opinion declaration upon the adjudication by the

that such relief is deemed to be the proper remedy. court. The relief of possession is therefore implicit.
To hold that a suit of this
624. The basis on which it has been urged that Suit
4 is not a suit for nature where the property is custodia legis cannot
possibly be held to be a suit
possession is that this Court has held in Deokuer v
Sheoprasad Singh327 that for possession is therefore a submission which has
no valid basis.
where property is custodia legis, it is not necessary
to make an independent 625. The submission that Suit 4 is barred by
limitation is founded on the
prayer for the delivery of possession. Hence it has
been urged that since a following hypotheses:

specific prayer for seeking possession was not (i) The entire property which is the subject matter
necessary, prayer (b) is otiose of the suit was custodia

and the character of the suit must be adjudicated legis consequent upon the proceedings under
only with reference to prayer Section 145;

(a). (ii) Once the property is custodia legis, a suit for

declaration would suffice and
The submission cannot be accepted. The decision
of this Court in Deokuer lays there is no need to seek the relief of possession;

down that where property is custodia legis, it is (iii) Prayer (b) seeking a decree for the delivery of
sufficient to seek a declaration of possession, ―if it is

title. This is because the court receiver who is an considered necessary‖ is redundant; and
officer of the court would hold
(iv) Consequently, in the absence of a prayer for
the property for the party who is found, upon possession, the suit is only
adjudication, to be entitled to
one for declaring the character of the mosque and is
327 AIR 1966 SC 359 hence governed by

PART O Article 120 of the Limitation Act 1908.

749 The basic foundation on which the above

submission is based is that the entirety
possession. Since the receiver would be duty bound
to hand over possession to of the property comprised in the inner and outer
courtyards was custodia legis
whoever is held by the court to be entitled to the
property, a formal prayer for

437
and was under the protective attachment of the amendment as a consequence of the destruction of
receiver. However, as a matter of the entire mosque and the

PART O relief which was claimed was as against the

statutory receiver who was
750
appointed as a consequence of the decision in
fact on 18 December 1961 when the suit was Ismail Faruqui. In view of the
instituted only the inner courtyard
above position, it becomes evident that the relief of
had been attached in pursuance of the orders passed possession which was sought
under Section 145. The
in terms of prayer (b) was not only in respect of the
outer courtyard was placed under receivership only area of the property which
in 1982. In Suit 4, the
covered what was attached, but also that which was
property which was the subject matter of the not the subject matter of the
dispute was:
PART O
(a) The inner courtyard which had been attached
under Section 145; 751

(b) The outer courtyard which had not been attachment. This being the position, the entire basis
attached; and of the submission invoking

(c) The adjoining graveyard which had not been the bar of limitation suffers from a fallacy and
attached. cannot be accepted.

626. Suit 4 related to both areas which were 627. Reading the plaint, the grievance of the
attached under Section 145 and plaintiffs was that they were in

areas which were clearly not the subject matter of possession and had offered prayers till 23
attachment. Consequently, the December 1949. On 23 December

declaration which was sought in the suit was not 1949, it is alleged that the Hindus surreptitiously
merely in respect of the land installed idols inside the mosque

which fell within the purview of the order of as a result of which the mosque was desecrated. By
attachment. Relief was sought in pleading specifically that the

terms of: plaintiffs were in possession and had offered

prayers until a particular date, the
(a) A declaration of the property described by the
letter A B C D as a public sequitur is that after that date, the plaintiffs ceased
to be in possession. This
mosque (covering both the inner and outer
courtyards) and the graveyard being the position, it becomes evident that even
before the property became
marked by the letter E F G H; and
cutodia legis following the attachment under
(b) Possession of the area of the mosque depicted Section 145, the plaintiffs had been
as A B C D.
ousted from possession. It was in this background,
In addition, it must be noted that prayer (bb) was that in prayer (a), the plaintiffs
brought in by way of an
sought a declaration in regard to the character of
the mosque as a public mosque

438
and in prayer (b) sought possession, in case it is been instituted within a period of twelve years of
necessary. Formulating a prayer the date of alleged

for relief in such terms is not unknown to the law dispossession on 23 December 1949 and is hence
of pleadings. Such was the case within limitation. In the view

for instance in C Natrajan v Ashim Bai328 where which has been taken above, the issue about
the reliefs were formulated in whether a case of a continuing

the following terms: wrong has been established has no relevance. On

the basis that the cause of
―2. The appellant herein filed a suit against the
respondents claiming, inter alia, for the following action was completed on 23 December 1949, it is
reliefs: ―(a) For declaration of the plaintiff's title evident that the suit was
to the suit property; (b) For consequential
injunction, restraining the defendants, their men, instituted within a period of twelve years from the
agents, servants, etc. from in any manner date of dispossession. Whether
interfering with the plaintiff's peaceful possession
there was a continuing injury as opposed to a
and enjoyment of the suit property. (c)
continuing wrong hence does not
Alternatively, if for any reason this Honourable
Court comes to a conclusion that the plaintiff is out arise in the above view of the matter.
of possession, for recovery of vacant possession of
the suit property; (d) Directing the defendant to pay 628. Mr Parasaran has submitted that the suit is for
the costs of this suit.‖ a declaration under Section

328 (2007) 14 SCC 183 42 of the Specific Relief Act 1877 as to the
character of property and not to the
PART O
title to the property. Learned counsel submitted that
752 prayer (a) as phrased is for a
This Court in proceedings arising out of an declaration that the property comprised within
application for rejection of a plaint letters A B C D in the map
under Order VII Rule 11 of the CPC, held that a annexed to the plaint is a public mosque. On this
plea in such a form would not basis, it has been urged that
invalidate the additional relief. The Court observed: prayer (a) does not seek a declaration of title. There
is no merit in the
―14. If the plaintiff is to be granted a relief of
recovery of possession, the suit could be filed PART O
within a period of 12 years. It is one thing to say
that whether such a relief can be granted or not 753
after the evidence is led by the parties but it is
another thing to say that the plaint is to be rejected submission. Prayer (a) seeks a declaration not only
on the ground that the same is barred by any law. with respect to the disputed
In the suit which has been filed for possession, as a
structure of the mosque but also in regard to the
consequence of declaration of the plaintiff's title,
land which was appurtenant to
Article 58 will have no application.‖
it. This is also evident from paragraph 21B of the
The suit in the circumstances is a suit for
plaint as amended which dealt
possession of immoveable property
with the consequence of the demolition of the
falling in the description provided by the first
mosque on 6 December 1992.
column of Article 142. The suit has

439
Paragraph 21B of the plaint contains a plea that offering namaz in the mosque after 23 December
notwithstanding the demolition of 1949, but a dispossession with

the structure, the land continues to retain its effect from that date.
character as a mosque.
630. The inner structure was attached by a
629. The cause of action as set up by the plaintiffs preliminary order under Section 145
was that the Muslims were in
on 29 December 1949 and the receiver assumed
peaceful possession of the mosque and used to charge on 5 January 1950.
recite prayer in it till 23
Reading the pleadings of the plaintiffs as a whole,
December 1949 when a crowd of Hindus with an it is evident that what has been
intent to destroy, damage or
asserted in paragraphs 11 and 23 is not merely an
defile the mosque entered it and desecrated the obstruction which was caused
mosque by placing idols inside.
to the worship within the precincts of the mosque
The expression ―till 23 December 1949‖ in by the Muslims by the
paragraph 11 of the plaint qualifies not
placement of the idols. The case of the Muslims
merely the offering of prayers in the mosque but was that the mosque was
the fact of possession as well.
desecrated and defiled by the installation of the
Hence, a reading of paragraph 11 of the plaint idols. Moreover, the very fact that
indicates that the case of the
worship was offered exclusively by the Hindus
plaintiffs was that the act of entering upon the within the precincts of the mosque
mosque on 23 December 1949 and
after the placement of the idols indicates a loss of
placing idols inside it was intended to destroy, possession by the Muslims.
damage and defile the character of
An important aspect of the matter is that the events
the mosque and that by doing so the mosque stood which took place on 22/23
desecrated. Moreover, it is in
December 1949 led to the ouster of the plaintiffs
that context that the pleading in paragraph 23 is from the mosque. Hence, to
that the cause of action arose on
read the plaint as a plaint which merely spoke of
23 December 1949 when the mosque was the obstruction in performing
desecrated and interference in the
worship and not as a complaint against the ouster
worship by the Muslims was caused. The evidence of the Muslims would be
on the record indicates that
incorrect. In fact, Justice Sudhir Agarwal has in the
after the idols were introduced into the mosque on course of his discussion
23 December 1949, worship of
noted that there was an ouster of the Muslims on 23
the idols was conducted by the priests within the December 1949. In
precincts of the mosque. Hence,
paragraph 2439, Justice Sudhir Agarwal observed
the plea in the paragraph 11 is not just one of thus:
obstruction of the Muslims in
―…In the case in hand, the facts pleaded by the
PART O plaintiffs show that they were ousted from the
disputed premises on 22/23rd December, 1949 and
754 the wrong is complete thereon since thereafter they

440
are totally dispossessed from the property in holding that Suit 4 is barred by limitation, is hence
dispute on the ground that they have no title.‖ incorrect. Suit 4 was filed

PART O within limitation.

755 Alternatively, even if it is held that the plaintiffs

were not in exclusive or settled
A similar observation is contained in paragraph
2443 where it has been noted : possession of the inner courtyard, the suit would
fall within the residuary
―…D. When the idols were placed under the
central dome in the night of 22nd/23rd December, Article144 in which event also, the suit would be
1949, and regular daily Puja commenced according within limitation.
to Hindu Shastric Laws ousting Muslims from
entering the property in dispute.‖ PART O

These findings of the learned judge are inconsistent 756

with his earlier observation
O.5 Applicable legal regime and Justice, Equity
that there was no ouster from possession but and Good Conscience
merely an obstruction or
632. The facts of the present case traverse three
interference with worship. The act of placing the centuries. During the oral
idols under the central dome on
arguments, the attention of this Court was drawn
the night intervening 22/23 December 1949 further back in time to written
effectively desecrated the mosque.
accounts recording the life of Emperor Babur in the
The evidence indicates that Hindu prayers and sixteenth and seventeenth
worship commenced within the
century. Taking the court beyond the pages of
mosque following the installation of the idols. This history, archaeological evidence
was an ouster of possession.
has been relied upon before the court. In seeking to
631. This being the position, the High Court was in establish their rights over the
error in applying the
disputed land, the parties have turned back the
provisions of Article 120. The suit in essence and clock of human history, to
substance was governed by
establish a point of genesis, where one party‘s
Article 142. Though, the last namaz was held on 16 claims over the disputed property
December 1949, the ouster
were uncontested: to establish the first right and the
of possession did not take place on that day. The first wrong. This court is
next Friday namaz would have
called on to determine the legal consequences
been held on 23 December 1949 and the act of arising out of a thousand years of
ouster took place on that date
prayer, contest, construction and destruction at the
and when the mosque was desecrated. The suit disputed site.
which was filed on 18 December
633. During this period, the disputed property has
1961 was within a period of 12 years from 23 fallen within the territory of
December 1949 and hence within
various rulers and legal regimes. The question of
limitation. The view, which has been taken by the which party, king or religion had
majority of the High Court

441
a first claim to the disputed site is one of significant plaintiffs in Suit 5, placed great emphasis on the
historical interest. But this existence of an ancient Hindu

court must determine what are the legal structure underneath the disputed property. Counsel
consequences arising from such an contended that the ruins of

enquiry. Human history is testament to the rise and this structure were used in the construction of the
fall of rulers and regimes. The mosque. Mr H S Jain, learned

law cannot be used as a device to reach back in counsel appearing on behalf of the Hindu
time and provide a legal remedy MahaSabha urged that during Babur‘s

to every person who disagrees with the course invasion of India, several temples were destroyed,
which history has taken. The including the temple

courts of today cannot take cognisance of historical constructed by Vikramaditya at Ayodhya. He

rights and wrongs unless it is contended that during the Mughal

shown that their legal consequences are period, the territory now known as ‗India‘ was
enforceable in the present. Thus, before under ‗foreign‘ occupation - Hindus

this Court embarks on a lengthy historical enquiry, were not permitted to exercise their religious rights
it is important to consider the and, upon the adoption of the

extent to which acts done and rights accrued under Constitution of India, the wrongs of the Mughals
previous legal regimes have are liable to be rectified. To

legal consequences today under our present laws. appreciate these arguments, it is necessary to
understand the extent to which our
PART O
law recognises the legal consequences of acts done
757 and rights accrued under

634. The facts pertaining to the present case fall previous legal regimes.
within four distinct legal
PART O
regimes: (i) The kingdoms prior to 1525 during
which the ―ancient underlying 758

structure‖ dating back to the twelfth century is Acts of State and changes in sovereignty
stated to have been constructed;
636. The principles determining the extent to which
(ii) The Mughal rule between 1525 and 1856 our courts can enforce the
during which the mosque was
legal consequences of actions and rights from
constructed at the disputed site; (iii) The period previous legal regimes has been
between 1856 and 1947 during
laid down by the Privy Council and adopted by this
which the disputed property came under colonial Court after Independence. In
rule; and (iv) The period after
Secretary of State Council in India v Kamachee
1947 until the present day in independent India. Boye Sahaba,329 the Rajah of

635. Mr Vaidyanathan, learned Senior Counsel Tanjore died on 29 October 1855 without a legal
appearing on behalf of the heir, causing the East India

442
Company to declare that the Raj had lapsed to the ―But, whatever may be the meaning of this
colonial government. A letter letter…It shows that the [colonial] Government
intended to seize all the property which actually
was sent by the colonial government, as the ‗new was seized, whether public or private, subject to an
sovereign of Tanjore‘, assurance that all which, upon investigation, should
be found to have been improperly seized, would be
requesting a list of the private and public property
restored. But, even with respect to property not
held by the former ruler in
belonging to the Rajah, it is difficult to suppose
order to decide any claims made against this that the Government intended to give a legal right
property. When no response was of redress to those who might think themselves
wronged, and to submit the conduct of their
received, a company official, ―taking advantage‖ officers, in the execution of a political measure, to
of the presence of the 25th the judgement of a legal tribunal. … The result, in
their Lordships‘ opinion, is, that the property now
Regiment of Infantry, took possession of the claimed by the respondent [eldest widow] has been
property of the Raja, placed it under seized by the British Government, acting as a
Sovereign power, through its delegate the East
seal and stationed sentries to guard the property. A
India Company; and that the act so done, with its
suit was brought before the
consequences, is an act of State over which the
Supreme Court of Madras by the eldest widow of Supreme Court of Madras has no jurisdiction. Of
the erstwhile Raja with respect the propriety or justice of that act, neither the Court
below nor the Judicial Committee have the means
to the private property of the former ruler. It was of forming, or the right of expressing, if they had
contended that upon the lapse of formed any opinion. It may have been just or
unjust, politic or impolitic, beneficial or injurious,
the Raj, it was only the public property of the Raja taken as a whole, to those whose interests are
that was acquired by the new affected. They are considerations into which their
Lordships cannot enter. It is sufficient to say that,
ruler while the private property of the Raja was to
even if a wrong has been done, it is a wrong which
be distributed in accordance
no Municipal Court of justice can afford a remedy.‖
with the Hindu law of succession. The respondents (Emphasis supplied)
contended that the seizure of
637. The action of the colonial government in
the Raja‘s property was an ―act of State‖ on behalf seizing the Raja‘s property was
of the colonial government as
an action between two sovereign actors - the
the new sovereign. The lapse of the Raj and the colonial government and the State
subsequent seizure involved
of Tanjore embodied by the Raja. The suit was
only the Raja and the colonial government - two instituted before the Supreme
sovereign powers, and
Court of Madras, a court of the colonial
329 (1857-60) 7 Moo IA government drawing on the colonial
(476)
government‘s sovereignty. The Privy Council held
PART O that the actions of the colonial

759 government vis-à-vis another sovereign entity (the

Raja of Tanjore) were acts of
consequently, the court had no jurisdiction to
entertain the matter. Accepting this State and the municipal courts could not entertain
matters questioning the legality
contention, Lord Kingsdown, speaking for the
Privy Council held: PART O

443
760 compelled to do in deriving title from him – it is a
wellestablished principle of law that the
of those acts unless the colonial government itself transactions of independent States between each
recognised that the matter was other are governed by other laws than those which
municipal courts administer. It is no answer to say
justiciable. The Privy Council held that there was
that by the ordinary principles of International Law
no evidence to support the
private property is respected by the
claim that the colonial government recognised that 330 (1899) AC 572
legal redress was to be given
PART O
to claimants of the Raja‘s property. Absent a
761
recognition by the colonial
Sovereign which accepts the cession and assumes
government that the consequences of the act of
the duties and legal obligations of the former
State were legally enforceable in
Sovereign with respect to such private property
municipal law, municipal courts could not entertain within the ceded territory…if there is either an
suits with respect to the act of express or well-understood bargain between the
ceding Potentate and the Government to which the
State. cession is made that private property shall be
respected that is only a bargain which can be
638. In 1899, this principle was followed by the enforced by Sovereign against Sovereign in the
Privy Council in its decision in ordinary course of diplomatic pressure.‖ (Emphasis
supplied)
Thomas and James Cook v Sir James Sprigg.330
The respondents in appeal 639. The common law principle which the Privy
Council adopted was that
had challenged certain agreements made by a
Native Chief of Pondoland municipal courts cannot enforce the law applicable
between two sovereign states.
granting concessionary rights over lands and
forests to the appellants, as The Privy Council clarified that irrespective of
what international law had to say
delegates of the British Sovereign. The respondents
contended that the on whether the new sovereign was subrogated into
the shoes of the old
agreements were contrary to the laws of Pondoland
at the time. The Privy sovereign with respect to the legal obligations of
the latter, a municipal court
Council held the grant of lands and rights to the
British Sovereign to be an act of cannot enforce such legal obligations in the
absence of express recognition of the
State between the ―Paramount Chief of the
Pondos‖ and the British Sovereign legal obligations by the new sovereign. Where
there is a change of sovereignty
and could not be challenged before a municipal
court on the grounds of violating from a former sovereign to a new sovereign, the
municipal courts of the new
Pondo law. Lord Halsbury, speaking for the Privy
Council, held: sovereign will not enforce the legal rights of parties
existing under the former
―The taking possession by Her Majesty whether
by cession or by any other means by which sovereign absent an express recognition by the new
sovereignty can be acquired was an act of State and sovereign of such legal
treating Sigcau [the Pondo Chief] as an
independent Sovereign – which the Appellants are rights.

444
640. The applicability of the above principles to the territory took effect, and what were the legal rights
question of proprietary rights enforceable in the tribunals of their new Sovereign,
of which they were thereafter possessed. The
existing under a former regime was discussed in a relation in which they stood to their native
1915 decision of the Privy Sovereigns before this cession, and the legal rights
they enjoyed under them, are, save in one respect,
Council in Secretary of State of India in Council v
entirely irrelevant matters. They could not carry in
Bai Rajbai331. The
under the new regime the legal rights, if any, which
respondent in appeal, being part of a group called they might have enjoyed under the old. The only
Kasbatis, had been given a legally enforceable rights they could have as
against their new Sovereign were those, and only
grant to collect rent from certain villages by the those, which that new Sovereign, by agreement
Gaekwar rulers of Ahmedabad. In expressed or implied or by legislation, chose to
confer upon them. Of course, this implied
1817, the district of Ahmedabad was ceded by the agreement might be proved by circumstantial
Gaekwars to the British evidence, such as the mode of dealing with them
331 ILR (1915) 39 Bom 625 which the new Sovereign adopted, his recognition
of their old rights, and express or implied election
PART O
to respect them and be bound by them, and it is
762 only for the purpose of determining whether and to
what extend the new Sovereign has recognised
Government. However, the settlement of the these ante-cession rights of the Kasbatis, and has
territories ceded was not practically elected or agreed to be bound by them, that the
consideration of the existence, nature, and extent of
implemented until 1822-23. When the territory was these rights become relevant subjects for inquiry in
ceded, the respondents were this case. This principle is well established…‖ …
In their Lordships‘ view, putting aside legislation
in possession of seventeen villages, but refused to
for the moment, the burden of proving that the
pay the requisite tax to the
Bombay Government did so consent to any, and if
colonial Bombay government on the ground of so, to what
their grant by the former ruler. A
PART O
settlement proposed by a Mr Williamson was also
763
rejected by the respondent and
extent, rests, in this case upon the respondent. The
the Bombay government eventually executed a
Kasbatis were not in a position in 1822 to reject
series of leases granting the
Mr. Williamson‘s proposal, however they might
Kasbatis the villages ―at the pleasure of the have disliked it, or to stand upon their ancient
government‖. The respondent filed a rights. Those rights had for all purposes of
litigation ceased to exist, and the only choice, in
suit claiming that upon the expiry of the leases, she point of law, left to them was to accept his terms or
was legally entitled to be to be dispossessed.‖ (Emphasis supplied)

granted a new lease. Lord Atkinson, speaking for 641. The cession of the territory of Ahmedabad by
the Privy Council, observed: the Gaekwars to the colonial

―Before dealing with the action of which the government was an act of State between two
Government of Bombay took in reference to this sovereigns. Upon the cession of
village of Charodi on receipt of these reports, it is
essential to consider what was the precise relation the territory, the rights of the citizens within the
in which the Kasbatis stood to the Bombay territory of their new sovereign,
Government the moment the cession of their

445
and consequently in the municipal courts of the princely rulers to the Republic of India.
new sovereign, were only those
643. In Promod Chandra Deb v State of Orissa332
expressly recognised by the new sovereign. Unless a batch of writ petitions
the new sovereign
were heard by a Constitution Bench of this Court.
recognised the rights of the citizens which existed The facts of the petitions were
in the old regime, the municipal
largely analogous to each other: the petitioners had
courts of the new sovereign could not enforce those received certain cash grants,
ancient rights. This includes
or Khor Posh grants, from princely rulers prior to
the right to property of the citizens within the these rulers ceding their
territory. Whether or not the new
territories to the Republic of India (then the
sovereign should recognise the property rights of Dominion of India). A question arose
citizens is a contention to be
as to whether the State of Orissa, as a delegate of
urged between the two sovereigns at a supra- the Central Government, was
national plane and a municipal
required to enforce the old laws of the princely
court would not entertain such contentions. The states including the providing of
recognition of property rights
the Khor Posh grants. Referring to the Privy
previously recognised in the old regime by the new Council decisions discussed above,
sovereign need not be explicit
Chief Justice B P Sinha speaking for the
and may be implied through the conduct of the new Constitution Bench laid down certain
sovereign and established
principles applicable when the municipal courts of
through circumstantial evidence. However, the a new sovereign must enforce
burden of proving the existence of
rights accruing to parties from the legal regime of a
the right in the previous regime and the recognition previous sovereign:
of the right by the new
―17. On an examination of the authorities
sovereign rested on the party claiming such a right. discussed or referred to above, the following
propositions emerge. (1) ―Act of State‖ is the
642. The principles enunciated by Lord Atkinson taking over of sovereign powers by a State in
have been adopted by this respect of territory which was not till then a part of
its territory, either by conquest, treaty or cession, or
Court after Independence. A significant number of
otherwise, and may be said to have taken place on a
disputes arose out of the rights
particular date, if there is a proclamation or other
granted to individuals by former princely rulers public declaration of such taking over. (2) But the
prior to the cession of their taking over of full sovereign powers may be spread
over a number of years, as a result of a historical
PART O process … (5) As an act of State derives its
authority not from municipal law but from ultra-
764 legal or supra-legal means, Municipal Courts have
no power to examine the propriety or legality of an
territories to the Republic of India. This Court was
act which comes within the ambit of ―act of
called upon to determine
State‖. (6) Whether the act of State has reference to
whether such rights were enforceable after the public or private rights, the result is the same,
change of sovereignty from the namely, that it is beyond

446
 332 1962 Supp (1) SCR courts of the new sovereign can embark upon an
405 inquiry as to whether the new

PART O sovereign has expressly or impliedly recognised the

rights and liabilities existing
765
under a former regime. However, the burden to
the jurisdiction of Municipal Courts to investigate establish the existence and
the rights and wrongs of the transaction and to
pronounce upon them and, that, therefore, such a recognition of such rights and liabilities remains on
Court cannot enforce its decisions, if any. It may be the party claiming them.
that the presumption is that the pre-existing laws of
the newly acquired territory continue, and that PART O
according to ordinarily principles of International
766
Law private property of the citizens is respected by
the new sovereign, but Municipal Courts have no 645. The principles laid down in Promod Chandra
jurisdiction to enforce such international Deb were affirmed by a
obligations. … (8) The Municipal Courts
recognised by the new sovereign have the power seven-judge Bench of this Court in State of Gujarat
and jurisdiction to investigate and ascertain only v Vora Fiddali Badruddin
such rights as the new sovereign has chosen to
recognise or acknowledge by legislation, Mithibarwala .333 The seven-judge Bench also
agreement or otherwise. (9) Such an agreement or expressly rejected the contention
recognition may be either express or may be
that grants given by a former sovereign are merely
implied from circumstances and evidence
voidable until expressly
appearing from the mode of dealing with those
rights by the new sovereign. Hence, the Municipal revoked by the new sovereign. The court held that
Courts have the jurisdiction to find out whether the such grants are not
new sovereign has or has not recognised or
acknowledged the rights in question, either enforceable by the municipal court of the new
expressly or by implication, as aforesaid. (1) In any sovereign unless expressly or
controversy as to the existence of the rights
claimed against the new sovereign, the burden of impliedly recognised by the new sovereign. These
proof lies on the claimant to establish the new principles have also been
sovereign has recognised or acknowledged the
affirmed by subsequent benches of this Court in
right in question.‖ (Emphasis supplied)
Pema Chibar v Union of
644. The Constitution Bench accepted the legal
India334 Union of India v Sudhansu
principles laid down by the
Mazumdar335.
Privy Council in determining the method in which
646. The evidence and arguments submitted before
the legal consequences of acts
this Court have canvassed
of a previous legal regime are recognised.
four distinct legal regimes. The legal consequences
Crucially, it does not matter that the
of actions taken, proprietary
acts pertain to public or private rights. Municipal
rights perfected, or injuries suffered in previous
courts will only recognise those
legal regimes can only be
rights and liabilities which have been recognised by
enforced by this Court if they received implied or
the new sovereign either
express recognition by
expressly or impliedly through conduct established
subsequent sovereigns. Absent such recognition,
by evidence. The municipal
the change of sovereignty is an

447
act of State and this Court cannot compel a were recognised by subsequent sovereigns. The
subsequent sovereign to recognise mere existence of a structure

and remedy historical wrongs. underneath the disputed property cannot lead to a
legally enforceable claim to
Ancient rights claimed by the parties
title today. Subsequent to the construction of the
647. The nature of the ancient underlying structure ancient structure in the twelfth
beneath the disputed
century, there exists an intervening period of four
property dating back to the twelfth century has hundred years prior to the
been the subject matter of great
construction of the mosque. No evidence has been
controversy in the present proceedings. Mr led with respect to the
Vaidyanathan contended that the
continued existence of the legal regime or any
structure represented a Hindu temple. It was urged change in legal regime. It is
that the existence of an
333 (1964) 6 SCR 461 334 (1966) 1 SCR 357 335 admitted by all parties that at some point during the
(1971) 3 SCC 265 reign of the Mughal empire, a

PART O mosque was constructed at the disputed site. Even

if this Court was to assume
767
that the underlying structure was in fact a Hindu
ancient Hindu temple below the disputed property temple which vested title to the
was evidence that title to the
disputed site in the plaintiff deities, no evidence has
disputed land vested in the plaintiff deities in Suit been led by the plaintiffs in
5. It was further urged that as
Suit 5 to establish that upon the change in legal
the land of a deity is inalienable, the title of the regime to the Mughal sovereign,
plaintiff deities from the twelfth
such rights were recognised.
century continues to be legally enforceable today.
For this submission to be PART O

accepted, it would need to be demonstrated that 768

every subsequent sovereign to
649. The Mughal conquest of the territories was a
the territory within which the disputed land falls supra-national act between
either expressly or impliedly
two sovereigns subsequent to which, absent the
recognised the title of the plaintiff deities in Suit 5. recognition by the new
The burden to establish this
sovereign of pre-existing rights, any claim to the
would rest firmly on the plaintiffs in Suit 5. disputed property could not have

648. No argument other than a bare reliance on the been enforced by virtue of the change in
ASI report was put forth. No sovereignty. This Court cannot entertain

evidence was led by the plaintiffs in Suit 5 to or enforce rights to the disputed property based
support the contention that even if solely on the existence of an

the underlying structure was believed to be a underlying temple dating to the twelfth century.
temple, the rights that flow from it

448
650. The next change in legal regime occurred on ever arisen. The Hindus however maintained
13 February 1856 with the immediate and continued contest

annexation of Oudh by the East India Company, over their exclusion from the inner courtyard. In
which later became the colonial 1877, another door was opened

government of the British Sovereign. The events on the northern side of the outer courtyard by the
which took place between 1856 British Government, which was

and Indian Independence and beyond will be given to the Hindus to control and manage.
considered in great detail at various
651. With respect to the change of legal regime
parts of this judgement and we need not advert to it between the British sovereign
at this juncture. However,
and the Republic of India, there exists a line of
certain factual aspects with respect to recognition continuity. Article 372 of the
of rights by the British
Constitution embodies the legal continuity between
sovereign may be noted. Upon the annexation of the British sovereign and
Oudh by the British sovereign,
independent India. Article 372(1) states:
no actions were taken by the sovereign to exclude
either the Hindu devotees of ―(1) Notwithstanding the repeal by this
Constitution of the enactments referred to in article
Lord Ram from worship nor the resident Muslims 395 but subject to the other provisions of this
offering namaz at the disputed Constitution, all the law in force in the territory of
India immediately before the commencement of
property. On 15 March 1858, by the proclamation this Constitution shall continue in force therein
of Lord Canning, all property, until altered or repealed or amended by a
competent Legislature or other competent
excluding a select few estates, were confiscated by
authority.‖ (Emphasis supplied)
the British sovereign and the
Article 296 of the Constitution states:
disputed property was designated as Nazul land
(i.e. land confiscated and ―Subject as hereinafter provided, any property in
the territory of India which, if this Constitution had
vesting in the government). However, the conduct
not come into operation, would have accrued to His
of the British government was
Majesty or, as the case may be, to the Ruler of an
to respect the practices and prayer of both religious Indian State by escheat or lapse, or as bona
communities at the disputed vacantia for want of a rightful owner, shall, if it is
property situate in a State, vest in such State, and
site. The construction of the railing in 1858 to shall, in any other case, vest in the Union‖
separate and maintain law and
These articles in the Constitution evidence a legal
order between the two communities is premised on continuity between the British
the worship of both religious
sovereign and the Republic of India. Moreover, the
communities at the disputed property. If either conduct of the Republic of
community was not present at the
India subsequent to attaining Independence was to
PART O uphold private property

769 claims that existed during the rule of the British

sovereign. It cannot be said that
disputed site, no question of needing to separate the
two communities could have PART O

449
770 sovereign and subsequently not interfered with
upon Indian independence. With
upon independence, all pre-existing private claims
between citizens inter se were respect to the disputed property, it is evident that
the British Sovereign
extinguished. They were recognised unless
modified or revoked by the express recognised and permitted the existence of both
Hindu and Muslim communities at
acts of the Indian government. For the present
purposes therefore, there is both the disputed property upon the annexation of Oudh
in 1856. This culminated with
express and implied recognition that the
independent Indian sovereign PART O

recognised the private claims over property as they 771

existed under the British
the construction of the railing in order to maintain
sovereign unless expressly evidenced otherwise. law and order between the two
Therefore, the rights of the
communities. The acts of the parties subsequent to
parties to the present dispute which occurred during the annexation of Oudh in
the colonial regime can be
1856 form the continued basis of the legal rights of
enforced by this Court today. the parties in the present suits

652. This Court cannot entertain claims that stem and it is these acts that this Court must evaluate to
from the actions of the decide the present dispute.

Mughal rulers against Hindu places of worship in a Justice, Equity and Good Conscience
court of law today. For any
653. Dr Rajeev Dhavan, learned Senior Counsel
person who seeks solace or recourse against the appearing on behalf of the
actions of any number of
plaintiffs in Suit 4 contended that the substantive
ancient rulers, the law is not the answer. Our content of the law applicable to
history is replete with actions that
the present case is ‗justice, equity and good
have been judged to be morally incorrect and even conscience‘. Dr Dhavan contended
today are liable to trigger
that while certain facets of the present dispute fall
vociferous ideological debate. However, the within a statutory framework,
adoption of the Constitution marks a
there are significant gaps in the positive law which
watershed moment where we, the people of India, must be filled in by applying
departed from the
the principles of justice, equity and good
determination of rights and liabilities on the basis conscience.
of our ideology, our religion, the
654. The import of this contention is that the Court
colour of our skin, or the century when our must be mindful of the
ancestors arrived at these lands, and
genesis of the present dispute that spans over four
submitted to the rule of law. Under our rule of law, distinct legal regimes – that of
this court can adjudicate upon
Vikramaditya, the Mughals, the British and now,
private property claims that were expressly or Independent India. In assessing
impliedly recognised by the British

450
the submissions of the parties and arriving at the history, may help to place the matter in perspective,
eventual conclusion, the needs showing that it still has a lively part to play in the
development of the legal systems of developing
of justice require specific attention to the countries.‖336
peculiarities of the case. The case
Equity and Romano-canonical origins
canvasses the rule of law, religion and law and
conquest, besides a myriad of 656. It is a common misconception that the term
‗justice, equity and good
conflicting interests. These cannot always be
comprehended within the available conscience‘ has its origins in English law. Sir
George Rankin succinctly stated
statutory framework applicable to the present facts.
This makes the role of the that the origins of ‗justice, equity and good
conscience‘ did not point to English
court even more sensitive as it must craft a relief
that accords with justice, equity law.337 Instead, Romano-canonical learning,
which was common to the European
and good conscience.
continent and appeared later in English minds of
PART O the sixteenth century, forms the

772 336 Dr J Duncan M

Derrett, Justice Equity and Good Conscience in
655. Any discussion on the concept of ‗justice,
Changing Law in Developing Countries (JND
equity and good conscience‘
Anderson ed.) at page 120
begs a few preliminary questions: (i) How did the
337 Sir George Rankin, The Personal Law in
concept originate?; (ii) What
British India, Sir George Birdwood Memorial
does it entail?; and (iii) What was the Indian Lecture on 21 February, 1941.
experience with the concept? In an
PART O
essay titled ―Justice, Equity and Good
773
Conscience‖, Duncan Derrett notes the
genesis of the concept. In his seminal work
difficulties that plague a discussion of a concept
―Ethics‖338, Aristotle considers the
whose contours are vague:
relations between equity and justice. Although
―It may be argued at the outset that ‗justice,
equity is not identical to strict
equity and good conscience‘ is a nice, comfortable
formula meaning as much or as little as the judges justice, it is nevertheless a kind of justice. To him,
for the time being care to make it mean. One might where the written statute is
confine one‘s activity to considering how judges
have in fact construed the direction to consult it. unequipped to address the particular circumstances
The results would not be of permanent value, since of the case and point to a
just as the concept of public policy varies with the
years and the venue, so precedents may be of little truly just outcome, aequitas (i.e. equity or fairness)
help where this phrase is called into play. Let us steps in. Adherence to the
agree at once that stuff of the judicial applications
written law may lead to an unjust outcome. In this
of the ‗residual‘ or ‗repugnancy‘ references has
view, where certain factors
limitation. Very few cases show a real curiosity as
to what the phrase means, many expressions fall place the facts of a case on a different pedestal,
per incuriam, and consequently are of no authority. such as public policy, it would be
But a survey of some representative application of
the formula, and a review of its extraordinary

451
unjust to impose the strict legal outcome of with Justitia, and yet seems to be by definition an
generally expressed laws. addition to it ab extra. In the second sense of the
term, aequitas fills the gaps left by the positive law.
Consequently, a departure from the written law is It supplements the ius scriptum sive non scriptum
(according to Artistotle) for cases not covered by statute, for example, or
contemplated by custom is so many words. In sense
permissible. This departure served the specific
(ii) aequitas is the most important source of law,
purpose of elevating certain
particularly for developing countries. Aequitas in
considerations that inform a factual matrix in order this sense is both scripta and non scripta.‖340
to arrive at a just and
658. The correlation between law and justice was
equitable conclusion. This notion was an the defining factor– in one
inspiration for and foundation of the
sense, equity modifies the applicable law or
Western legal tradition of equity.339 ensures its suitability to address the

657. Derrett documents that the above notion particular circumstances before a court to produce
influenced Romanic propositions justice. The modification of

in two ways: (i) aequitas served as an ally in the general rules to the circumstances of the case is
interpretation of statute law to guided by equity, not in

correct, modify and if necessary, amend it; and (ii) derogation or negation of positive law, but in
to make good the deficiencies addition to it. It supplements positive

of the written or otherwise ascertainable law. To law but does not supplant it. In a second sense
this end, the role of equity was however, where positive law is

formulated as follows: silent as to the applicable legal principles, equity

assumes a primary role as the
―If we see iustitia [justice] as the correlative of
aequitas, then iustitia consists of positive law, made source of law itself. Equity steps in to fill the gaps
up of written and unwritten sources, statutes and that exist in positive law. Thus,
customs, the applicability of these being
where no positive law is discernible, courts turn to
determined either by positive law itself, or by the
equity as a source of the
natural equity, that is to say, the natural reason of
the case. But in another sense aequitas comes into applicable law. In addition to these, Derrett notes
the picture of that there is a third sense in

338 Aristotle, Ethics, which equity or aequitas assumed importance –

JAK Thomson (trans) (London, Penguin, 1976) at where established political
pages 198–200. 339 Max Hamburger, Morals and
Law: The Growth of Aristotle‘s Legal Theory authority is taken away or is in doubt and the
(1965). formal sources of law are in doubt,

PART O the nature of judicial office requires a decision in

accordance with ex bono et
774
aequo. This was evidenced in decisions concerning
iustitia. There can be no ius in practice without its widows and orphans and in
twin, the aequitas in sense (i) which modifies or
amends it to suit circumstances. Ius strictum, or the realm of mercantile law.
summum ius, the ‗letter of the law‘, can very
seldom, if ever, move without the aid of aequitas, 340 Dr J Duncan M
‗equity‘. Thus, in sense (i) aequitas is bound up Derrett, Justice Equity and Good Conscience in

452
Changing Law in Developing Countries (JND 660. The application of ‗justice, equity and good
Anderson ed.) at page 120 conscience‘ to India

PART O commenced with colonial rule in Bombay. As

Bombay assumed prominence as a
775
341 Dr J Duncan M
659. In all three senses noted above, equity offered Derrett, Justice Equity and Good Conscience in
judges the discretion to Changing Law in Developing Countries (JND
Anderson ed.) at page 123
marry general principles of law and the particular
circumstances before them to PART O

arrive at a just decision. However, this discretion 776

was not unbridled. Derrett rightly
commercial centre, there arose a need for a system
notes: of mercantile law to avoid the

―What did this jurisdiction amount to? Did it inadequacies of the common law in its application
mean that the judge followed his nose, and gave in India as well as in the
judgment according to his fancy? No…it is
emphasized again and again that the judge consults English Admiralty courts. Company judges
analogous provisions of law; juridical maxims, in appointed in 1669 were hence
particular those contained in the Corpus juris, even
though they have not in fact been applied to such a required to adjudicate in accordance to good
case in the written sources of law or equity; and the conscience.342 Eventually, the Royal
writings of jurists steeped in legal thinking. … …
Charters of (i) 9 August, 1683 set up the mercantile
The first step will be to see whether the other
and admiralty courts at
provisions of the code throw any general light on
the problem. This implies an interpretation of ius Bombay; and (ii) 30 December, 1687 set up the
scriptum…Thus equity in very many cases Municipality and Mayor‘s Court at
involves consultation of law…‖341
Madras. The Court of Judicature at Bombay was
In this sense, positive law and the general required to adjudicate
principles furnished by positive law
‗according to the rules of equity and good
serve as a useful guide in ensuring that equity is not conscience, and according to the laws
a method of giving effect
and customs of merchants.‘ The Mayor‘s Court at
merely to the individual worldview of judges. Madras was to be guided
Where positive law is silent and
according to equity and good conscience.
equity steps in to furnish a source of law, its
content is informed by analogous 661. On 5 July, 1781 Governor General Warren
Hastings passed the
provisions of the law that furnish a useful guide.
This ensures that equity Regulations for the Administration of Justice in the
Court of Dewanee Adaulat of
operates within a larger legal framework informed
by the values which underline the provinces of Bengal, Bihar and Orissa.
Regulation 60 of the said regulations
the legitimacy of the legal system as a whole.
stated:
Inroads into India
―That in all cases, within the jurisdiction of the
Mofussil Dewannee Adalat, for which no specific

453
Directions are hereby given, and respective Judges Mahomedan or Gentoo by the law and usages of
thereof do act according to Justice, Equity and the defendant.‖343
Good Conscience.‖
The scheme for administration of justice drawn up
A similar provision for Judges of the Sadr court by Warren Hastings was
was made in Regulation 93.
characterized by two main features: one was that of
Though these provisions were procedural in nature, decentralisation by the
they marked further inroads
introduction of subordinate courts, both civil and
of the concept into the Indian administrative and criminal. The other was the
legal framework. Regulation 9 of
reservation to both Hindus and Mohammedans of
Regulation VII of 1832 reads: their own personal laws and

342 B Lindsay, British usages in the domain of their domestic relations.

Justice in India, the University of Toronto Law
Journal, Vol. 1, No. 2 (1936), at page 344 662. Until the 1850s, judges turned to Hindu
personal law and Muslim personal
PART O
law to decided matters of faith and religion. Where
777 the exact provisions were not

―Where parties are of different persuasions, the 343 See also Article 27
laws of the religions shall not deprive a party of of the Plan of 1772 which reads: ―That in all suits
property to which, but for the operation of such regarding inheritance, marriage and caste and other
laws, he would have been entitled. In all such religious usages and institutions, the laws of the
cases, the decisions shall be governed by the Koran with respect to Mahomedans and those of
principles of justice, equity and good conscience, it the Shaster with respect to Gentoos shall be
being clearly understood, however, that this invariably adhered to. On all such occasions the
provisions shall not be considered as justifying the Molavies shall respectively attend to expound the
introduction of the English or any foreign law, or law and they shall sign the report and assist in
the application to such cases of any rules not passing the decree.‖ See also Section 15 of
sanctioned by these principles.‖ Regulation IV of the Cornwalliis Code of 1793.

Accompanying this was the space carved out for PART O

the application of the personal
778
law of the parties. For example, in 1781 itself, the
Parliament passed the Act of certain, judges required the reassurance that their
decisions were in consonance
1781, Section 17 of which stipulated that the
Supreme Court should have the with the needs of justice in every case. For this,
they turned to ‗justice, equity and
power to entertain all suits against the inhabitants
of Calcutta: good conscience‘.

―Provided that inheritance and succession to The conflation between the concept and English
lands, rents and goods, and all matters of contract law
and dealing between party and party, shall be
663. Alongside the introduction of ‗justice, equity
determined in the case of Mahomedans by the laws
and good conscience‘ in the
and usages of Mahomedans, and in the case of
Gentoos, by the laws and usages of Gentoos; and Indian legal system, another parallel development
where only one of the parties shall be a gradually took place - despite

454
the broad underpinnings of the term which allowed scholar Marc Galanter has documented the
reference by analogy to varied conflation of the term with English

systems of law, over time, there arose a law:

presumption that the term ‗justice, equity
―In their search for authoritative bodies of law,
and good conscience‘ was synonymous with the British made collections and translations of
English law. The expansion in the ancient texts and recent commentaries. However,
Indian law proved strangely elusive…It was soon
powers of the East India Company was recognized that sastra was only a part of the law
accompanied with a vesting in the and that in many matters Indians were regulated by
less formal bodies of customary law. But even
Company of the power of administration of justice.
customary law was not sufficient…The need to fill
MC Setalvad writes:
the felt gaps was ultimately to lead to statutory
―As the Company‘s territories became gradually codification on the basis of English law. But in the
enlarged by settlement and conquest the Privy meantime, courts, empowered to decide cases in
Council, as the highest court of appeal from the accordance with ‗justice, equity and good
decisions of the Indian courts, became a growing conscience‘, filled the interstices of sastra and
influence in the application of the basic principles custom with ‗unamalgamated masses of foreign
of English jurisprudence as the rules of decision all law‘. Although there was some attempt to draw the
over the country. It was natural, perhaps inevitable, most suitable rule from other sources, in most cases
that the eminent English judges, who presided over the [English] judges were inclined to assume that
this tribunal should attempt to solve the problems English law was most suitable.‖345 (Emphasis
that came before them wherever Indian regulations Suuplied])
or statutes contained no provisions applicable to
665. The applicable law was stated to be the
them by drawing upon the learning on which they
parties‘ personal law and the
had been brought up and the rules and maxims to
which they had been accustomed for a lifetime. colonial government initially relied on the
This explains why from the earliest times the testimonies of pandits and maulvis to
decisions of this tribunal in appeals from India
have resulted in a steady and continuous granting translate religious texts which would be used to
of the principles of common law and equity into the adjudicate. Eventually, this
body of Indian jurisprudence.‖344
system was abolished and increased reliance was
344 MC Setalvad, The placed on English translations
Common Law in India (1960) at pages 31-32.
of the relevant religious texts. Ultimately, the
PART O colonial government sought to fill

779 any remaining lacunae with English law.346

Another impetus was the setting up of
664. With an increase in the activities of the East
India Company, judges and 345 Marc Galanter, Law
and Society in Modern India (1997), at pages
barristers trained in English law moulded the 221,222. 346 Sir George Rankin, the Personal Law
Indian judicial system. This led to, in British India, Sir George Birdwood Memorial
Lecture on 21 February, 1941– ―Under the
an increased reference to English law both in
scheme of 1772 the English judges in the civil
arguments before courts as well as
courts were to get their law form the pandits and
in the judgments of the Courts in British India. The moulavies. These ―law officers‖ lasted as an
distinguished American institution from 1772 till 1864, then they were
abolished, not before their usefulness had come to
an end. There was no system of training them, as
Sir Thomas Strange was to point out (1825); their

455
qualifications were not always great, nor constitute a formal marriage. No reasons were
temptation always absent. It was imperative that given and hence, the matter was
the texts should be made available to the judges
themselves, and the labours of Jones, Henry remanded. In addition to this direction, Justice W
Colebrooke, the Markby made an additional

PART O observation with respect to the enforceability of a

decree of restitution of conjugal
780
relations:
the Privy Council in 1833 as the final court of
appeal from India. These together
Macnaghtens, and Strange were directed to the
resulted in the conflation between ‗justice, equity translation of the original authorities and the
and good conscience‘ and exposition of their contents.‖ 347 (1868) 9 W.R.
230, 232. 348 (1875) 23 W.R. 179
English law. However, in truth, the term ‗justice,
equity and good conscience‘ PART O

authorises a broad-ranging reference to analogous 781

systems of law to source legal
―But surely, when we look to the law of England
principles that can be applied to the specific case for a guide, it is where that law is in harmony with
before the court and ensure a the general principles of equity and jurisprudence
that we should adopt it, not where it is exceptional.
just outcome.
That the English law, on the subject of enforcing
666. The correct legal position was noted by Chief conjugal rights, is exception, I have no manner of
Justice Barnes Peacock in doubt…It appears to me, therefore, that if we were
to hold that a court could enforce continuous
Degunbaree Dabee v Eshan Chunder Sein347 performance of conjugal duties by unlimited fine
where it was held: and imprisonment, we should place the law of this
country in opposition to the law of the whole
―Now, having to administer equity, justice and civilized world, except the ecclesiastic law of
good conscience, where are we to look for the England.‖ (Emphasis supplied)
principles which are to guide us? We must go to
other countries where equity and justice are The court clarified that even where courts look to
administered upon principles which have been the English law to furnish a guide,
growth of ages, and see how the courts act under
similar circumstances; and if we find that the rules the first step was to check whether it conformed to
which they have laid down are in accordance with the principles of general equity
the true principles of equity, we cannot do wrong in
and justice. The court recognised that while the
following them.‖
exaction of conjugal duties or
A true understanding of the evolution of the
pain of unlimited fines and imprisonment might
concept found expression in judicial
conform to the position in
decisions in India. In Gatha Ram Mistree v
England, the court was not bound to adopt it where
Moohita Kochin Atteah
the governing principles of
Domoonee,348 the plaintiff filed a suit for the
the civilised legal regimes indicated that it was
restitution of conjugal rights. The
against justice, equity and good
Deputy Commissioner held that though a ceremony
conscience to do so.
took place, it did not

456
667. In Radha Kishen v Raj Kaur349, a man who ―27…If the principle invoked depended upon any
bore children from a woman technical rule of English law, it would of course be
inapplicable to a case determinable, like this, on the
outside his caste was treated to be an outcaste. broad principles of equity and good conscience. It
Upon his death, the woman held is only applicable because it is agreeable to general
equity and good conscience. And, again, if it
his property, the possession of which she handed to
possesses that character, the limits of its
their children upon her
applicability are not to be taken as rigidly defined
death. The brothers of the man sued for the by the course of English decisions, although those
recovery of his property contending decisions are undoubtedly valuable, in so far as
they recognize the general equity of the principle,
that the woman and their illegitimate children had and show how it has been applied by the Courts of
no right to the property. The this country.‖

court, without any reference to English law, held 669. The position that the term ‗justice, equity and
that the property was self good conscience‘ indicates

acquired and that justice, equity and good English law is thus unsupported. The formula
conscience required that the suit be ―was a device to escape from

dismissed. Chief Justice Edgar and Justice Knox English law, not to call it in‖.351 It is true that its
writing together for the application in India heralded the

Allahabad High Court held: diffusion of English Law into the Indian legal
system by virtue of globalisation,
349 (1891) 13 All 573
acculturation and common epistemic communities.
PART O The formula authorised
350(1878-79) 6 IA 145 351 Dr J Duncan M
782
Derrett, Justice Equity and Good Conscience In
―We cannot find amongst the authorities and texts Changing Law in Developing Countries (JND
cited to us any sure principle to guide us in this Anderson ed.)
case. Under these circumstances we must act on the
PART O
principles of equity and good conscience, and
decline to oust from the possession of the property 783
acquired by Khuman his sons and their mother and
the widow of the deceased son for the benefit of the reference by analogy to systems of law across
vendee of brothers …‖ national frontiers. Though the

No explicit reference was made to English law, but Roman origins of the term stand for a broader
to general principles that application of the term even where

would provide content to the concept of ‗justice, there is an express provision that governs the case,
equity and good conscience.‘ the development of the term

668. In Rajah Kishendatt Ram v Rajah Mumtaz Ali as it evolved in India indicates that it is only where
Khan350, the Privy Council the positive law and customary

dealt with the rights of redemption of a mortgagor law was silent or led to perverse or absurd
whose property had received outcomes, that the principles of

accretions through certain mergers by the justice, equity and good conscience were applied.
mortgagee in possession. Justice JW
Justice, Equity and Good Conscience today
Colville spoke thus:

457
670. With the development of statutory law and Narmadabai352, it was argued that the amendment
judicial precedent, including the made in 1929 to Section

progressive codification of customs in the Hindu 111(g) of the Transfer of Property Act requiring a
Code and in the Shariat Act written notice by the lessor for

1937, the need to place reliance on justice, equity the determination of a lease embodies a principle of
and good conscience gradually justice, equity and good

reduced. There is (at least in theory) a reduced conscience. Justice Mehr Chand Mahajan (as he
scope for the application of then was), writing for a two

justice, equity and good conscience when doctrinal judge Bench of this Court held:
positions established under a
―7. The main point for consideration thus is
statute cover factual situations or where the whether the particular provision introduced in sub-
principles underlying the system of section (g) of Section 111 of the Transfer of
Property Act in 1929 is but a statutory recognition
personal law in question can be definitively of a principle of justice, equity and good
ascertained. But even then, it would conscience, or whether it is merely a procedural
and technical rule introduced in the section by the
do disservice to judicial craft to adopt a theory
legislature and is not based on any well established
which excludes the application of
principles of equity. The High Court held, and we
justice, equity and good conscience to areas of law think rightly, that this provision in subsection (g) of
governed by statute. For the Section 111 in regard to notice was not based upon
any principle of justice, equity and good
law develops interstitially, as judges work conscience.
themselves in tandem with statute law
18. …In England it is not necessary in case of non-
to arrive at just outcomes. Where the rights of the payment of rent for a landlord to give notice before
parties are not governed by a a forfeiture results. It cannot, therefore, be said that
what has been enacted in subsection (g) of Section
particular personal law, or where the personal law 111 is a matter which even today in English law is
is silent or incapable of being considered as a matter of justice, equity and good
conscience.‖
ascertained by a court, where a code has a lacuna,
or where the source of law This Court held that the requirement of a notice
being issued by the lessor upon
fails or requires to be supplemented, justice, equity
and good conscience may the non-payment of dues was one of procedure, and
absent a statutory mandate,
properly be referred to.
the same could not be introduced under the guise of
PART O
‗justice, equity and good
784
conscience.‘ It appeared at a first glance that the
671. Post-independence, Indian Courts have Bench conflated justice, equity
utilised the concept less frequently
and good conscience with the position in English
but adopted a broader view of the term ‗justice, law. This is not the correct
equity and good conscience‘.
position. The view expressed in this case was
Two cases of this Court are instructive. In Namdeo reinterpreted by this Court in
Lokman Lodhi v
352 1953 SCR 1009

458
PART O Lodhi v. Narmadabai [(1953) SCR 1009] this Court
has emphatically observed that it is axiomatic that
785 the courts must apply the principles of justice,
equity and good conscience to transactions which
Murarilal v Dev Karan353 which arose out of a
come before them for determination even though
redemption suit filed by the
the statutory provisions of the Transfer of Property
respondent against the appellant. The respondent Act are not made applicable to these transactions.
had contended that though the These observations, in substance, represent the
same traditional judicial approach in
period to repay the loan taken by him against a 353 (1964) 8 SCR 239
mortgage of certain properties
PART O
had elapsed, the right to redeem continued to vest
in him. This was resisted by 786

the appellant who contended that upon the expiry dealing with oppressive unjust and unreasonable
of the repayment period restrictions imposed by the mortgagees on needy
mortgagors when mortgage documents are
stipulated, the appellant became the absolute owner executed.
of the mortgaged property.
…
Though Section 60 of the Transfer of Property Act
embodied the equity principle 16. … Even so, we think it would be reasonable to
assume that civil courts established in the State of
of redemption, it was not applicable in Alwar Alwar were like civil courts all over the country,
where the dispute arose. A required to administer justice and equity where
there was no specific statutory provision to deal
Constitution Bench of this Court held that the with the question raised before them. …. In the
mortgage deed contained a absence of any material on the record on the point,
we are reluctant to accept Mr Sarjoo Prasad's
provision which amounted to a clog on the equity
argument that the doctrine of equity and justice
of redemption. Chief Justice PB
should be treated as irrelevant in dealing with the
Gajendragadkar, speaking for the Bench held: present dispute.

―5. Therefore, the main question which arises in …

the present appeal is: Does the equitable doctrine
20. Thus it is clear that the equitable principle of
ensuing the mortgagors equity of redemption in
justice, equity and good conscience has been
spite of a clog created on such equity by stipulation
consistently applied by civil courts in dealing with
in the mortgage deed apply to the present case?
mortgages in a substantial part of Rajasthan and
This question arises in this form, because the
that lends support to the contention of the
Transfer of Property Act did not apply to Alwar at
respondent that it was recognised even in Alwar
the time when the mortgage was executed nor at
that if a mortgage deed contains a stipulation which
the time when the 15 years' stipulated period
unreasonably restrains or restricts the mortgagor‘s
expired.
equity of redemption courts were empowered to
… ignore that stipulation and enforce the mortgagor's
right to redeem, subject, of course, to the general
15. In dealing with this argument, it would be law of limitation prescribed in that behalf. We are,
relevant to observe that traditionally, courts in therefore, satisfied that no case has been made out
India have been consistently enforcing the by the appellant to justify our interference with the
principles of equity which prevent the enforcement conclusion of the Rajasthan High Court that the
of stipulations in mortgage deeds which relevant stipulation on which the appellant relies
unreasonably restrain or restrict the mortgagor's ought to be enforced even though it creates a clog
right to redeem… In fact, in Namdeo Lokman on the equity of redemption.‖

459
672. The Court also cited instances of decisions of to the application of the letter of the existing law.
the High Courts which had Courts in India have long

held that Section 60 of the Transfer of Property Act availed of the principles of justice, good conscience
embodied the just and and equity to supplement the

equitable principle. In this view, the Bench took a incompleteness or inapplicability of the letter of the
broader view of the principles law with the ground realities

embodied by justice, equity and good conscience. of legal disputes to do justice between the parties.
The Court held that the view of Equity, as an essential

this Court in Namdeo is consistent with and similar component of justice, formed the final step in the
to the analogous situation of just adjudication of disputes.

unreasonable and oppressive contractual terms and After taking recourse to legal principles from
in that sense, justice, equity varied legal systems, scholarly

and good conscience was analogous to English law written work on the subject, and the experience of
only where English law itself the Bar and Bench, if no

PART O decisive or just outcome could be reached, a judge

may apply the principles of
787
equity between the parties to ensure that justice is
was in conformity with the principles supported by done. This has often found
justice, equity and good
form in the power of the court to craft reliefs that
conscience. are both legally sustainable and

673. The common underlying thread is that justice, just.

good conscience and equity
PART O
plays a supplementary role in enabling courts to
mould the relief to suit the 788

circumstances that present themselves before courts Equity and Article 142
with the principle purpose
674. The concept of ‗justice, equity and good
of ensuring a just outcome. Where the existing conscience‘ as a tool to ensure a
statutory framework is inadequate
just outcome also finds expression in Article 142 of
for courts to adjudicate upon the dispute before the Constitution which reads:
them, or no settled judicial
―142. (1) The Supreme Court in the exercise of its
doctrine or custom can be availed of, courts may jurisdiction may pass such decree or make such
legitimately take recourse to the order as is necessary for doing complete justice in
any cause or matter pending before it, and any
principles of justice, equity and good conscience to decree so passed or order so made shall be
effectively and fairly dispose enforceable throughout the territory of India in
such manner as may be prescribed by or under any
of the case. A court cannot abdicate its
law made by Parliament and, until provision in that
responsibility to decide a dispute over
behalf is so made, in such manner as the President
legal rights merely because the facts of a case do may by order prescribe.‖ (Emphasis supplied)
not readily submit themselves

460
The phrase ‗is necessary for doing complete retains its character as a home and refuge for many
justice‘ is of a wide amplitude and religions and plural values. It

encompasses a power of equity which is employed is in the cacophony of its multi-lingual and multi-
when the strict application of cultural voices, based on a

the law is inadequate to produce a just outcome. medley or regions and religions, that the Indian
The demands of justice require citizen as a person and India as a

a close attention not just to positive law but also to nation must realise the sense of peace within. It is
the silences of positive law to in seeking this ultimate

find within its interstices, a solution that is balance for a just society that we must apply
equitable and just. The legal enterprise justice, equity and good conscience.

is premised on the application of generally worded It is in these situations, that courts are empowered
laws to the specifics of a case to ensure a just outcome by

before courts. The complexities of human history passing an order necessary to ensure complete
and activity inevitably lead to justice between the parties.

unique contests – such as in this case, involving 675. In Union Carbide Corporation v Union of
religion, history and the law - India,354 this Court speaking

which the law, by its general nature, is inadequate through Chief Justice Ranganath Misra
to deal with. Even where circumscribed the power under Article

positive law is clear, the deliberately wide 142 in the following manner:
amplitude of the power under Article
―83…Prohibitions or limitations or provisions
142 empowers a court to pass an order which contained in ordinary laws cannot, ipso facto, act as
accords with justice. For justice is prohibitions or limitations on the constitutional
powers under Article 142…But we think that such
the foundation which brings home the purpose of prohibition should also be shown to be based on
any legal enterprise and on some underlying fundamental and general issues of
public policy and not merely incidental to a
which the legitimacy of the rule of law rests. The
particular statutory scheme or pattern. It will again
equitable power under Article
be wholly incorrect to say that powers under
142 of the Constitution brings to fore the Article 142 are subject to such express statutory
intersection between the general and prohibitions. That would convey the idea that
statutory provisions override a constitutional
specific. Courts may find themselves in situations provision. Perhaps, the proper way of expressing
where the silences of the law the idea is that in exercising powers under Article
142 and in assessing the needs of ―complete
PART O justice‖ of a cause or matter, the apex Court will
take note of the express prohibitions in any
789
substantive statutory provision based on some
need to be infused with meaning or the rigours of fundamental principles of public policy and
its rough edges need to be regulate the exercise of its power and discretion
accordingly. The proposition does not relate to the
softened for law to retain its humane and powers of the Court under Article 142, but only to
compassionate face. Above all, the law what is or is not ‗complete justice‘ of a cause or
matter and in 354 (1991)
needs to be determined, interpreted and applied in 4 SCC 584
this case to ensure that India

461
PART O customs and common law. Where exclusive rule-
based theories of law and
790
adjudication are inadequate to explain either the
the ultimate analysis of the propriety of the functioning of the system or
exercise of the power. No question of lack of
jurisdiction or of nullity can arise.‖ create a relief that ensures complete justice, it is
necessary to supplement such a
Where rigidity is considered inadequate to address
a situation, the plenary power 355 (1998) 4 SCC 409
356 Ronald Dworkin, Hard Cases, Harvard Law
of this Court for doing complete justice is an appeal Review, Vol. 88., No. 6 (Apr. 1975), pp. 1057-
of last resort to the inherent 1109.

quality of equity that the law is designed to protect, PART O

to ensure that the Court is
791
empowered to craft a relief that comports with both
reason and justice. Similarly, model with principles grounded in equitable
standards. The power under Article
in Supreme Court Bar Association v Union of
India355, Justice A S Anand, 142 however is not limitless. It authorises the court
to pass orders to secure
speaking for the Court held:
complete justice in the case before it. Article 142
―47…It, however, needs to be remembered that embodies both the notion of
the powers conferred to the court by Article 142
being curative in nature cannot be construed as justice, equity and good conscience as well as a
powers which authorise the court to ignore the supplementary power to the
substantive rights of a litigant while dealing with a
case pending before it ... Article 142, even with the court to effect complete justice.
width of its amplitude, cannot be used to build a
O.6 Grants and recognition
new edifice where none existed earlier, by ignoring
express statutory provisions dealing with a subject 677. The Sunni Central Waqf Board has set up the
and thereby to achieve something indirectly which case that Babri Masjid was
cannot be achieved directly.‖
built by or at the behest of Babur in 1528 and was
676. The extraordinary constitutional power to pass dedicated as a place for
any decree or an order
Muslims to offer prayer. The claim is that since the
which, in the opinion of this Court is necessary for date of its construction until
doing complete justice
the mosque was attached in December 1949,
embodies the idea that a court must, by necessity, Muslims offered prayers
be empowered to craft
continuously in the mosque. Expenses for the
outcomes that ensure a just outcome. When a court upkeep and maintenance of the
is presented before it with
mosque were stated to have been realised in the
hard cases356, they follow an interpretation of the form of a cash grant which was
law that best fits and justifies
paid by the royal treasury during the rule of Babur
the existing legal landscape - the constitution, which was continued under
statutes, rules, regulations,
colonial rule by the British.

462
678. The significant aspect of the case which has by the British Government for the upkeep of the
been pleaded in Suit 4 is the mosque. Bearing this in mind, it

construction of the mosque in 1528 A.D. and its is necessary now to scrutinise the evidence.
use by Muslims for the purpose
I Grants by the British Government for upkeep of
of offering prayer thereafter. But, a crucial aspect mosque
of the evidentiary record is the
679. According to the Sunni Central Waqf Board,
absence of any evidence to indicate that the the colonial government
mosque was, after its construction,
continued grants for the upkeep and maintenance of
used for offering namaz until 1856-7. Justice the mosque originally given
Sudhir Agarwal noticed this feature
during the time of Babur. In this regard, the Sunni
of the case bearing on the lack of evidence of the Central Waqf Board has in the
use of the mosque for the
course of its written submissions formulated its
purpose of worship until the riots of 1856-7. The reliance on the documentary
learned Judge also noted the
record thus:
submission of Mr Jilani for the Sunni Central Waqf
Board in the following extracts: ―(a) The extract of Register Mafiat bearing
Government Orders dated March 13, 1860 and
PART O June 29, 1860 show the name of Babur as the
donor/grantee.  Further Column 13, which refers
792 to the order of the Chief Commissioner, states that-
―So long the Masjid is kept up and
―2314…even if for the purpose of the issues in
question we assume that the building in dispute PART O
was so constructed in 1528 A.D., there is no
evidence whatsoever that after its construction, it 793
was ever used as a mosque by Muslims at least till
1856-57. Sri Jilani fairly admitted during the the Mohammadans conduct themselves properly, I
course of arguments that historical or other recommend the continuance of the grant.‖
evidence is not available to show the position of
 Moreover, in column 14, headed ‗Final order of
possession or offering of Namaz in the disputed
Government‘ it has been mentioned that-
building at least till 1855…‖
―Released so long as the object for which the
During the course of the hearing before this Court, grant has been made is kept up vide Government
this observation on the Order No.2321 dated January 29, 1860.‖

absence of any evidence indicating worship by Justice Sudhir Agarwal noted in his judgment that
Muslims prior to 1856-7 was this appears to be a copy of

specifically put to Dr Rajeev Dhavan learned some register ―but it is an extremely torn
Senior Counsel appearing on behalf document and the contents on

of the Sunni Central Waqf Board. Learned Senior page 163 are almost illegible‖. He observed the
Counsel did not deny that the following:

evidentiary record which is relied upon by the ―(b) The Register of Inquiry (14.3.1860) of rent
Sunni Central Waqf Board free land records that Emperor granted revenue
grant of Rs.302/3/6 to Mir Baqi for the purposes of
essentially commences with the grants which were construction and maintenance of Mosque namely
stated to have been continued Babri Mosque at village Shahnawa. The following

463
points were recorded in the register:  The name Mohd Asghar, bearing the seal of the Chief
of Emperor Babur was noted as the ‗grantee‘.  Commissioner. It reads:
The rent-free land is situated at village Shahnawa
and that it generates an annual revenue of Rs.302, 3 ―It having been established after due inquiry that
ana and 6 pai.  This rent-free land grant was Rajjab Ali and Mohd. Asghar received a Cash
given as a Waqf at the time of construction of Nankar of (Rs. 302-3-6) Rupee Three Hundred and
Babri Masjid by Babar for meeting the expenses of two three annas six pie from Mauza Shahanwa
the salary of Muezzin and Khatib.  This rent free District Fyzabad, in rent free tenure under the
grant was given to Saiyed Baqi for his lifetime and former Government. The Chief Commissioner,
thereafter to his son for lifetime and thereafter to under the authority of the Governor General in
Saiyed Hussain Ali.  Decision of the Board Council is pleased to maintain the grant for so long
(dated June 29, 1880) was that the grant will as the object for which the grant has been made is
survive till the continuation of the purpose for kept up on the following conditions. That they shall
which it was given exemption from land revenue.‖ have surrendered all sunnds title deeds and other
documents relating to the grant in question. That
The document states that there is ―no knowledge they and their successors shall strictly perform all
of the date of grant‖ and the the duties of land holders in matters of Police, and
any Military or Political service that may be
name of the donor/grantor is ―on the basis of required of them by the Authorities and that they
testimony‖. Similarly, it has been shall never fall under the just suspicion of
favouring in any way the designs of enemies of the
stated that ―based on the testimonies, this land
British Government. If any one of these conditions
free grant was given as waqf at
is broken by Rajjab Ali and Mohammad Asghar or
the time of the preparation for construction of their successor the grant will be immediately
Babri Masjid at Ayodhya by resumed.‖

Emperor Babur for meeting the expenses and the Dealing with the above documents, Justice
salary of ―Muezzin and Agarwal has observed:

Khateeb‖. The order and date are not known: ―2336. The above documents though show that
some grant was allowed to Mir Rajjab Ali and
PART O Mohd. Asgar but it does not appear that any kind of
inquiry was made by the authorities concerned and
794 if so, what was the basis therefor. According to the
claim of Muslims, the Commander of Babar, who
―(c) Copy of the excerpts of the Register No. 6
was responsible for construction of the building in
(e), conditional land revenue exemption of Tehsil
dispute was Mir
Faizabad dated 29 June 1860. In this Register, the
name of ‗Mohd. Asghar and Mohd. Rajjab Ali‘ is PART O
recorded as the name of the person who is holding
the rent-free land (reflected in Column. 6 & 7).‖ 795

II Conversion of cash nankar grant into grant of Baqi while Mir Rajjab Ali claimed himself to be
revenue free land the son-inlaw of the daughter of grand son of Syed
Baqi. Mohd. Asgar was son of Mir Rajjab Ali,
680. In 1864, the British Government converted the therefore, the son and father claimed relation with
cash nankar into a grant of the 4th generation of the alleged original Mutwalli
and staked their claim for grant. No material
revenue-free land situated in the Villages of
existed to show that earlier such grant was awarded
Sholapur and Bahoranpur in the
by any one though stated by the aforesaid two
vicinity of Ayodhya. A certificate of grant was persons. If we go by the averments of the plaint
executed in favour of Rajjab Ali and that the alleged waqf was created in 1528, it is
wholly untrustworthy to find out that in the last
more than 325 years, it could only be the fourth

464
generation and its relatives are at the best 5th Be that as it may, the High Court has noted that the
generation. The authorities in 1860-61 were not documents would show that
under a duty to act judicially in this matter and
therefore, might not have given any details of their financial assistance was provided by the British for
enquiry as to on what basis the alleged enquiry was the purposes of the
conducted. Ex facie, to us, the genealogy of Mir
maintenance of the mosque, but this would not
Rajjab Ali commencing from Syed Baki who must
amount to proving that the
have existed in 1528 is unbelievable. It is not out of
context that the story of grant might have been set structure was used for the purpose of offering
up by the two persons i.e. father and son for the namaz. In connection with the
purpose of obtaining valuable grant from Britishers
in their favour. In any case, these documents only above grant of revenue free land, the following
show that a financial assistance was provided by documents have been relied
the British Government for the purpose of the
mosque in question but this by itself may not be a upon:
proof that the building in dispute was used by
―(i) On August 25, 1863, Secretary Chief
Muslims for offering Namaz or for Islamic
Commissioner of Awadh wrote to the
religious purposes to the extent of ouster of Hindu
Commissioner Faizabad Division mentioning that
people or otherwise.‖ (Emphasis
the Governor General has sanctioned Chief
supplied)
Commissioner‘s proposal for the commutation of
From the above extract, it appears that a grant was the cash payment of Rs.302-3-6 granted in
provided to Rajjab Ali and perpetuity for the support of the Janamasthan
Mosque to the grant of rent-free land near
Mohd Asghar. However, certain significant facets Ayodhya. It was further requested that a provision
emerge from the record: for the change be made by grant of some Nazul
Land near Ayodhya.‖ (Exhibit A 14 Suit 1) (ii) On
(i) The absence of a due enquiry indicating the August 31, 1863, an order was passed by Deputy
basis of the grant; Commissioner regarding the rent-free land
(fetching an annual rent of Rs. 302/3/6) which was
(ii) A claim set up by Mir Rajjab Ali stating that he
sanctioned by the Government to the Masjid
was the son-in-law of the
Janamsthan. It was ordered that the map of the
daughter of the grandson of Mir Baqi while Mohd proposed land marked for the purpose should
Asghar was the son of clearly indicate boundaries and be sent by the
Deputy Commissioner to the Commissioner. (iii)
Mir Rajjab Ali; and On September 13, 1860, order was passed by the
Deputy Commissioner, Faizabad, wherein it was
(iii) The absence of any material to indicate the stated that the map of the lands which had been
basis for such a grant being selected for approval for giving in lieu of the lands
of the Masjid had been sent. It was therefore
granted in the previous history of 325 years; and
ordered that the proceedings be presented before
PART O the Additional Assistant Commissioner for
immediate action. (iv) Thereafter several orders
796 were passed to consider as to which lands were to
be allotted for the purpose of the Masjid. (v) On
(iv) The setting up of a claim by a person October 10, 1865 it was ordered that possession of
belonging to the fourth generation the lands should be immediately given and
acknowledgment should be taken. (vi) On October
from Mir Baqi with no evidence on the record of
19, 1865, it was reported that the proceedings
the intervening period of
regarding the handing over the land have been
over three centuries. completed and the acknowledgement was also
confirmed.

465
PART O PART O

797 798

(vii) Subsequently, on October 30, 1865, the file same was a ―Masjid Waqf Ahde Shahi‖. This
was consigned to the record.‖ document also notes that the

III Grants of 1870 Ramchabutra was famous as the birth-place.

681. The British Government having discontinued The document inter alia contains the following
the annual cash grant, on entries:

repeated representations of Mohd Asghar and ―Dastandazi (11) Indraz Raghunath Das
Rajjab Ali, granted fresh land in Janambhumi Ke Mahant Mukarrar Kiye Gaye, Ke
Bajaye Mahant Ram Sharan Das.
Muafi in the villages of Bhuraipur and Sholapur in
1870. Later on, a sanad was Kaifiyat (Details) (16) Masjid Pokhta Waqf Ahde
Shahi andar Sahan Masjid Ek Chabutara Jo
issued by the Chief Commissioner that the cash Janambhumi Ke naam Se Mashhoor Hai,
nankar of Rs 302/3annas/6pies Darakhtan Goolar Ek Imli Ek Mulsiri Ek, Pipal Ek,
Bel Ek..Masjid Mausma Shah Babur Shar
received by Rajjab Ali and Mohd Asghar as rent-
Marhoom.‖
free tenure in village Shahanwa
O.7 Disputes and cases affirming possession
under the former Government (Rule of Nawab) was
being maintained (as Muafi 683. After the riots of 1856-7, the British set up a
railing outside the three
and in the villages of Bhuraipur and Sholapur)
under the authority of the domed structure. This evidently appears to have
been done to maintain peace
Governor General in Council so long as the object
for which the grant had been and order. Muslims would worship inside the
railing while the Hindus would
made was kept up.
worship outside. The platform which has been
On 3 January/February 1870, an order was passed
described as Ramchabutra was
by the Settlement Officer in
constructed by the Hindus in close proximity to and
Mohd Afzal Ali and Mohd Asghar v
outside the railing. The
Government357, wherein it was decreed as
construction of the Ramhabutra was adverted to in
follows:
the written statement of Mohd
―The superior proprietary right in Mauza
Asghar in the Suit of 1885. Though, according to
Bahronpur is decreed revenue free to Mohammad
the Muslims, on an application
Asghar and Mohammad Afzal Ali.‖
by them, an order was passed for digging out the
IV Nakal Khasra Abadi
Ramchabutra, no order has
682. In 1931, the entry in the Nakal Khasra Abadi
been placed on record. Following the incident of
mentioned in the Nazul
1856-7, several cases were
register records the presence of Babri Masjid at
instituted. These include the following:
Plot No. 583 and notes that the
PART O
357 Case No.5
799

466
Case No 884 – Eviction of Nihang Singh Faqir ―Previously the symbol of janam sthan had been
from Masjid premises: there and Hindus did puja‖

(i) On 28 November 1858, Thanedar Sheetal f) It was therefore prayed that:

Dubey filed an application
PART O
stating that one Nihang Singh Faqir Khalsa resident
of Punjab, organised 800

hawan and puja of Guru Gobind Singh and erected i. The spot may be inspected, and the new
a symbol of ‗Sri construction be

Bhagwan‘ within the premises of the Masjid. The demolished; and

Thanedar requested that
ii. Hindus be ousted from the masjid and the
action, as deemed necessary, may be taken; symbol and the idol

(ii) On 30 November 1858, Syed Mohammad may be removed and the writing on the walls be
Khatib (Moazzin of the Babri washed.

Masjid) lodged a complaint, being case number (iii) A dispute has been raised about the translation
884, before the Station of the above document by

House Officer about the installation of a Nishan by Mr Pasha, learned Counsel appearing on behalf of
Nihang Singh and the plaintiffs in Suit 4.

requested its removal. In the application, he stated The document was translated thus:
that:
―You are the master of both the parties since the
a) Nihang Singh is creating a riot in the masjid; Shahi ear (sic) if any person constructs forcibly he
would be punished by your honour. Kindly
b) He had forcibly made a Chabutra inside the consider the fact that Masjid is a place of worship
masjid, placed a picture of of Muslims and not that of Hindus. Previously the
symbol of Janamsthan had been there for hundreds
the idol inside the masjid, lit a fire and was of years and Hindus did puja.‖ (Emphasis supplied)
conducting puja. He had
The correct translation, according to Mr Pasha,
written the words ―Ram Ram‖ with coal on the should read thus:
walls of the masjid;
―It is evident from the clear words of the Shah
c) The masjid is a place of worship of Muslims and that if any person constructs forcibly he would be
not Hindus, and if punished by the government and your honour may
consider the fact that Masjid is a place of worship
someone constructs anything forcibly inside it, he
of the Muslims and not the contrary position that
should be punished;
previously the symbol of Janamsthan had been
d) Previously also the Bairagis had constructed a there for hundreds of years and Hindus used to
Ramchabutra overnight perform puja.‖
(Emphasis supplied)
of about 1 ballisht height (about 22.83 cms), until
injunction orders were The words ―and not the contrary position‖ in the
submissions of Mr Pasha are
issued;
contrived. They militate against the tenor of the
e) The application stated: letter of the Moazzin. The

467
complaint was against the erection of a (vii) On 6 December 1858, a report was submitted
Ramchabutra inside the Masjid and in by Sheetal Dubey,

that context it was stated that though previously the Thanedar Oudh recording the appearance of the
symbol of the Janmasthan Faqir in court; and

has been there for hundreds of years and Hindus (viii) On 10 December 1858, an order was passed
conducted puja, a construction recording that the Jhanda

had been made inside the Masjid for the first time. (flag) was uprooted from the masjid and the Faqir
residing therein was
PART O
ousted.
801
684. Case no 223 filed on 5 November 1860 by Mir
(iv) An order was passed on 30 November 1858, Rajjab Ali: On 5
pursuant to which Sheetal
November 1860, an application was filed by Mir
Dubey, Thanedar visited the disputed premises and Rajjab Ali against Askali Singh in
informed Nihang
Case number 223 complaining about a new
Singh about the order but he replied that the entire ―Chabootra‖ being constructed in the
place is of Nirankar and
graveyard. In this application it was stated that:
the government of the country should impart
justice; PART O

(v) On 1 December 1958, Sheetal Dubey, Thanedar 802

submitted a report in
a) A small ―Chabootra‖ had been constructed in
case number 884, describing that when he took the the graveyard adjacent to
summons order dated
Babri Masjid by one Nihang. He was told not to do
30 November 1858 addressed to Nihang Singh so but he did not refrain
Faqir for leaving the place,
and became violent;
he received no reply. He reported what had actually
transpired and sought b) Previously, about a year and a half earlier, Hari
Das (Mahant of Hanuman
instructions from the higher authorities;
Garhi) tried to build a house forcibly and was made
(vi) An order dated 5 December 1858 was issued in to execute a
case number 884 wherein
bond/undertaking for non-interference. The said
a direction was issued by the court in furtherance of undertaking is still
the order dated
available in the files;
November 30, 1858 (wherein it was directed that
the Faqir sitting in Babri c) The Commissioner also found a flag which had
been pitched within the
Masjid should be ousted) directing the Police Sub-
Inspector Avadh that in grounds of Babri Masjid and upon seeing it, got the
flag removed;
case the Faqir is not removed from the spot, he
must be arrested and d) Nowadays, when the Moazzin recites Azan, the
opposite parties begin to
presented in court;

468
blow conch shells; and (ii) Thereafter on 18 March 1862, the application
dated 12 March 1861
e) The newly built ―Chabootra‖ should be directed
to be demolished and an preferred by Mohd Asghar, Mir Rajjab Ali and
Mohd Afzal was directed to
undertaking/ bond should be taken from the
opposite party that they will be consigned to the records.

not unlawfully and illegally interfere in the masjid 686. Application against Tulsidas and other
property and will not blow Bairagis (Included in case

conch shells at the time of Azaan; number 223 already decided on 18 April 1861): On
25 September 1866, an
685. On 12 March 1861, an application was filed
by Mohd Asghar, Rajjab Ali application was filed by Mohd Afzal (mutawalli
Masjid Babri) against Tulsidas and
and Mohd Afzal, in furtherance of the previous
application, stating that Imkani other Bairagis, praying for demolishing a Kothri
which had been newly
Sikh had illegally occupied the lands of the
plaintiffs and had erected a constructed ―for placing idols etc.‖ inside the door
of the Masjid where the
―Chabootra‖ without permission near Babri
Masjid. Even though on the previous Bairagis had constructed a ―Chabootra‖. In this
application it was stated that:
application, orders were issued to evict Imkani
Sikh from the ―Chabootra‖, but the a) Babri Masjid situated near Janmasthan in Oudh
Khas was constructed by
hut where he was staying still remained. It was
submitted that whenever a Shah Babur;

Mahant will go there or stay in the hut, a cause for b) For the last few days, Bairagis were attempting
dispute will arise. It was to build Shivalaya near the

therefore prayed that an order be issued to the Sub- masjid, but due to the vigilance of the Muslims and
Inspector that after the timely reporting of the

PART O matter, the authorities imposed restrictions and

prevented a dispute;
803
c) Now about a month ago, the defendants,
eviction of Imkani Sikh, the hut/kutir should also Tulsidas/Bairagis with the
be demolished and precaution
intention of placing idols, had constructed a Kothri
should be taken so that a foundation of a new house in the compound of the
is not allowed to be laid;
mosque. The construction was done illegally within
(i) On 18 March 1861, the Subedar tendered a a few hours;
report regarding the execution
PART O
of an order dated 16 March 1861. It was stated that
not only has Imkani 804

Sikh been evicted from the Kutir (hut) but the hut d) The police had already been informed but no
has also been orders regarding the

demolished; and

469
demolition of the Kothri have been issued by the masjid, and there was no encroachment;
government. Owing to
PART O
this Kothri, there is an apprehension of a daily
clash; 805

e) Previously they had constructed a Ramchabutra (ii) There could be no encroachment until the wall
overnight and because of of the Masjid itself had been

this construction, riots happened. Now a small dug into, however it had not been so alleged; and
Kothri had been constructed
(iii) The previous order of the Commissioner dated
within a short span of time. There was a possibility 27 February 1864 directed
that they could increase
that Hindus should not encroach on the boundaries
such constructions gradually; and of the mosque and

f) Accordingly, it was prayed that the mosque may Ramchabutra. However, since so encroachment
be protected from the was proved, there was no

Bairagis and orders for dismantling the Kothri may reason to interfere.
be passed.
688. Mohd Asghar v Government: On 22 February
g) On 12 October 1866 the Deputy Commissioner, 1870, a suit was filed by
Faizabad passed an order
Mohd Asghar (Mutawalli of Babri Masjid) seeking
on the application of Mohd Afzal (included in case to evict the defendant who was
number 223) against
a Faqir from occupation of the trees of Imli (Bagh
Tulsidas, directing its consignment to records. Imli), Khandhal and graveyard.

687. Niyamat Ali and Mohd Shah v Gangadhar It was stated that:
Shastri: On 26 August 1868,
(i) 21 Imli trees had always been in possession of
an order was passed by Major J Reed, the applicants and their
Commissioner, Faizabad in an appeal
ancestors since ancient times;
against the order dated 25 June 1868 passed by the
(ii) The Faqir who was their servant was earlier
Officiating Deputy
residing there with the
Commissioner, Faizabad in the case of Niyamat Ali
permission of the ancestors of the plaintiffs;
and Mohd Shah v
(iii) During the ‗Shahi‘ period, the Faqir turned
Gangadhar Shastri. This case was filed by the
against the plaintiffs‘ ancestors
Muslims against one Ganga Dhar
and was therefore ousted from the premises; and
alleging that he was encroaching on the north-
western corner of the masjid. The (iv) Hence, a decree for eviction be passed against
the Faqir from the trees
order dismissed the appeal as no encroachment was
proved. However, the and the graveyard.
following observations were made: (v) On 22 August 1871, an order was passed,
dismissing the claim of Mohd
(i) The maps show that the house of Ganga Dhar
touched the wall of the Asghar regarding ownership of the Qabaristan in
the vicinity of ‗Masjid

470
Babar Shah Mauja Kot Ram Chandar‘ while Asghar v Khem Dass: On 3 April 1877, the Deputy
decreeing the claim over the Commissioner, Faizabad

trees. The order contained the following granted permission to the Hindus to open a new
observations: door (Singh Dwar) in the

―Possession of Plaintiffs over the tamarind trees northern outer wall of the disputed building. This
was established, but right of ownership cannot be permission was challenged by
of the Plaintiffs as this is general graveyard and
courtyard in Mohd Asghar by filing an appeal358, where he
claimed that:
PART O
a) Each place within the boundary wall of the
806 mosque is the mosque;

front of the door of the Masjid Janamsthan. b) The general principle is that the matters relating
Therefore, such an Arazi (piece of land) cannot be to a masjid should be
private property.‖
‗handed over‘ to Muslims while matters relating to
689. Placing of Idol in 1873: In November 1873, an the temple should be
idol was placed on the
358 Misc Appeal No.56
‗platform of Janmasthan‘ (referred to in the Deputy
Commissioner‘s report dated PART O

14 August 1877 and Commissioner‘s order dated 807

18 December 1877);
handed over to the Hindus. Thus, the permission
(ii) On 7 November 1873, an order was passed in accorded to the
the case of Mohd Asghar v
defendants for opening the gate was in
Mahant Baldeo Das directing the removal of the contravention of this basic
Charan Paduka which
principle;
was not complied with; and
c) Previously, on 7 November 1873, an order was
(iii) On 10 November 1873, Baldeo Das was passed directing the
directed by the Deputy
Hindus to remove the idols. Therefore, when there
Commissioner to remove an image placed on the is no permission to
Janmasthan platform. A
install idols, a right over the wall of the masjid
report was submitted stating that an officer had could not be given to the
gone to the house of
defendants;
Baldeo Das who was not found. The order was
d) On the door of the outer wall of the masjid, the
explained to other priests
word Allah is engraved;
who said they could not carry out the order. These
e) When the appellant himself had requested that
orders were not
he be permitted to open the
complied with and the image was not removed.
said door at his own expense and he was ready and
690. Opening up of the northern gate (Singh Dwar willing to open it, the
in 1877) - Mohd
defendants who belonged to another religion could
not have been

471
accorded permission to open the additional door; and accepted the independent right of the Hindu
and worshippers over the area as a

f) The defendant with the intention of occupying part of their worship of the idols.
the area continued to
692. Mohd Asghar v Musammat Humaira Bibi
indulge in several activities and on being restrained and Sunder Tiwari (1878): On
by anyone, becomes
3 June 1878, a decree was passed in favour of
aggressive and was bent to fight with him. Mohammed Asghar in claim

On 14 May 1877, a report was submitted by the petition no 2775 of 1877 in the matter of Mohd
Deputy Commissioner, stating Asghar v Musammat Humaira

that if the other door was not opened, human life Bibi and Sunder Tiwari and Bhola Tiwari and
would be endangered as there Kanshi Ram, claiming 3/8th part of

was a great rush. Ultimately, on 13 December Zamindari rights of Mauza Bahoranpur Pargana
1877, the appeal was dismissed Haveli Oudh. The petition was

on the ground that the outer door was in the allowed in favour of Mohammad Asghar, the
interests of public safety. The order plaintiff who had prayed for

states that the petition was merely an attempt to evacuation and cancellation of a sale deed dated 10
annoy the Hindus by making August 1876 for part of

them dependent on the pleasure of the ‗mosque Mauza Zamindari Bahoranpur.

people‘ to open or close the
693. Mohd Asghar v Raghubir Das Mahant and
second door. Nirmohi Akhara: On 8

PART O November 1882, Suit no 374/943 of 1882 was filed

by Mohd Asghar (who was
808
the Mutawalli of Babri Masjid) against Raghubar
691. The sequence of events emanating from the Das claiming rent for the use of
installation of an idol in 1873,
the Chabutra and Takhat situated near the door of
the specific permission to the Hindus to open an Babri Masjid. In this plaint the
additional access on the
Chabutra has been described to have been situated
northern side and the observations in the appeal near the door of Babri Masjid
that the objections to the
PART O
opening were baseless are significant. The presence
and worship of the Hindus 809

at the site was recognised and the appellate order or before the masjid. By an order dated 18 June
rejected the attempt to cede 1883, the Sub-Judge Faizabad

control over the entry door to the Muslims as this dismissed this suit. The necessary consequence was
would make the Hindu that Raghubar Das was not

community dependent on them. The administration required to pay compensation to the Mutawalli for
in other words recognised occupation.

472
694. Mohd Asghar v Mahant Raghubar Das359: a) Restricting Raghubar Das from carrying out
On 2 November 1883, Sayyed repairs in the inner as

Mohd Asghar filed case number 19435 before the well as the outer part of the compound; and
Assistant Commissioner,
b) Mohd Asghar was advised not to lock the outer
stating that he is entitled to get the wall of the door of the mosque
mosque white-washed but is being
as it was necessary that old existing orders be
obstructed by Raghubar Das. The following points observed and
in the application are
complied with and there should be no interference
important: in it.

a) Plaintiff is unable to explain the complaints of h) Subsequently on 27 June 1884, Raghubar Das,
defendant that the birth filed an application in

place Chabutara within the Ahata of the Masjid requesting the Assistant Commissioner, Faizabad
belongs to the defendant. to make a spot

Thus the defendant has no relation with the outer inspection of the premises complaining that
wall of Ahata, kathera Muslims were violating the

and Phatak and all these relate to the Masjid; order of restraint.

b) Allah is written on the outer wall; Impact of Suit of 1885

c) Whenever any need for 695. Mahant Raghubar Das instituted the Suit of
repairing/renovation/white washing of the mosque 1885 against the Secretary of

has arisen, only the applicant has got it done; State for India seeking permission to construct a
temple at the Chabutra
d) The applicant/plaintiff has purchased the
material, but the defendant came admeasuring 17 x 21 feet where the Charan Paduka
were affixed and
there for doing the work and therefore a dispute has
arisen; and worshipped. In the section on res judicata, the
nature of the suit has been
e) The defendant has no right whatsoever, except
over the Chabutra and Sita analysed and a finding has been arrived at that the
decision does not attract the
Rasoi.
provisions of Section 11 of the CPC 1908.
f) On 12 January 1884, an order was passed to
maintain status quo and to 696. However, certain salient aspects of the
proceedings may be noted:
leave the outer door open;
(i) The cause title mentioned the name of Mahant
359 Case No. 19435 Raghubar Das as ―Mahant

PART O Janmasthan Ayodhya‖. Conspicuous by its absence

was any reference to
810
Nirmohi Akhara in the plaint;
g) On 22 January 1884, the Assistant
Commissioner, Faizabad passed an PART O

order.

473
811 (b) Before this, both Hindus and Muslims were
worshipping in the
(ii) The suit was not based on a claim of title;
place but to avoid any controversy, the wall had
(iii) The only relief that was sought was the grant been erected; and
of permission simpliciter to
(c) The Chabutra was in the possession of and
construct the temple on the Chabutra; belonged to the

(iv) In the absence of any plea of title, the Hindus.

adjudication in the suit must
PART O
necessary be construed as being confined to what
was prayed namely 812

permission to construct a temple on the Chabutra; 697. The Sub-Judge in declining permission
indicated that to permit the
(v) The map that was annexed to the suit does
indicate the existence of the construction of the temple would essentially alter
the status quo resulting in a
Masjid. But it equally indicates of worship by
Hindus in the outer courtyard. breach of peace. The order of the Sub-Judge
dismissing the suit was affirmed in
The map submitted by Gopal Sahai, as a Court
Commissioner appointed first appeal primarily on the ground that any breach
of the status quo would
in the suit, together with his report dated 6
December 1885 shows the seriously impinge upon the maintenance of peace.
Hence, the findings in regard
existence of the Masjid on the western side of the
Chabutra; to the possession and ownership of the Chabutra
were redundant and were
(vi) The suit was contested by Mohd Asghar as
Mutawalli of Babri Masjid who deleted. In a second appeal, the order of the First
Appellate Court was affirmed.
claimed inter alia that:
While the Judicial Commissioner considered it
(a) Babur had got the mosque constructed on which unfortunate that a mosque had
the word ‗Allah‘
been constructed on a site which the Hindus
was inscribed; attributed as the birth-place of Lord

(b) The Chabutra was built in 1857 and was Ram, he was of the view that a breach of the status
opposed by Muslims; and quo at that stage was

(c) Previously, a restraint was imposed on undesirable.

construction activities.
698. All the findings in the Suit of 1885 must be
(vii) The Sub-Judge while dismissing the suit noted read in the context of the nature
that:
of the proceedings, the party who had moved the
(a) After the construction of a wall with a railing, court for relief and its outcome.
Muslims were praying
The suit was not of a representative nature. No
inside the Masjid and the Hindus, outside at the permission to sue in a
Chabutra;

474
representative capacity was sought or obtained. The realization from the Hindu residents of Ayodhya.
Mahant of the Janmasthan (d) Meanwhile by an Order dated May 12, 1934 the
Muslims were permitted to start the work of
claimed relief personal to him. Neither was a cleaning of Babri Mosque from May 14, 1934, so
declaration of title sought nor was that it could be used for religious purposes.‖

the objective of the suit anything beyond seeking 700. During the course of the communal riots
permission to construct a which took place in 1934, the

temple on the Chabutra in order to obviate domes of the disputed structure were damaged.
inconvenience to faqirs and Renovation was carried out at

worshippers. Hence, the outcome of the suit would the cost of the British Government through a
have no impact or bearing on Muslim contractor and a fine was

the parties to the present proceedings or on the imposed on the Bairagis and Hindus of Ayodhya to
issue of title. recover the cost of repair. On

PART O PART O

813 814

Incidents between 1934 and 1950 12 May 1934, the Muslims were permitted to
commence the cleaning of the
Communal riots of 1934
mosque in order for it to be used for religious
699. In 1934, as a result of the communal riots,
purposes.
substantial damage was
Repairs to the mosque
sustained to the domes of the disputed structure.
The structure was renovated at 701. Following the decision to allow repairs to be
conducted, the documentary
the cost of the British through a Muslim contractor.
In this context, the following evidence produced by the Sunni Central Waqf
Board includes:
documents have been relied upon:
(i) Claims by the contractor who repaired Babri
(a) An application was moved by Mohd. Zaki and
Masjid for the payment of his
others for compensation of the losses caused in the
riots on 27 March 1934. In this application it was outstanding bills and orders for verifying the work
mentioned that:- which was done towards

 The Bairagis of Ayodhya and Hindus attacked effecting payment between 1935 and April 1936;
the Babri Masjid intentionally and caused great and
damage.  The repair of the masjid will require a
huge sum of money.  It was therefore prayed that (ii) Resolution of the claim for the arrears of salary
the estimated cost of repairs, i.e. Rs.15000 be of the Pesh Imam of Babri
recovered from the Bairagis and other Hindus of
Ayodhya as per Section 15 of the Police Act 1861. Masjid between July 1936 and August 1938.
(b) The Dy. Commissioner Faizabad on 6.10.1934
The suit between Nirmohis
allowed the aforesaid amount of compensation to
be paid for damages to the Babri Mosque subject to 702. The next stage in the developments which
any other objections. (c) Thereafter on 22.12.1934, took place post the riots of 1934
Notice was published by District Magistrate,
Faizabad with respect to fine imposed under consists of Suit 95/1941, instituted by Mahant
section 15A(2) of the Police Act and for its Ramcharan Das against

475
Raghunath Das and others. This suit pertained to that they had visited the Babri Masjid to offer
properties claimed by Nirmohi namaz. Their evidence is of

Akhara including the Ramchabutra described as relevance to determine whether namaz was being
―Janmabhumi Mandir‖. Babri offered at the disputed

Masjid is adverted to in the list of properties property as well as the frequency of the namaz.
provided in the suit. A report was
705. Mohammad Hashim (PW-1): The age of the
submitted by the Commissioner on 18 April 1942. witness was stated to be
The suit was disposed of by a
about 75 years. In the affidavit filed in lieu of the
compromise dated 4 June 1942 in terms of which a Examination-in-Chief, the
decree was drawn up. The
witness stated that Tabari was read only in Babri
suit pertained to a dispute inter se between the Masjid. He had sometimes read
Nirmohis. The Muslim parties
five times namaz and the namaz of Jumme and
have relied on the compromise as indicating the Tabari. He claims to have read
existence of Babri Masjid and
the last namaz on 22 December 1949. In his cross-
the graveyard. examination the witness

PART O stated that it was in 1938 that he first went to read

namaz. He further stated in his
815
cross-examination that namaz was offered five
The suit between Shias and Sunnis times daily at the disputed site.

703. In 1945, there was a litigation between the PART O

Shias and Sunnis in Suit
816
29/1945 which was decided on 30 March 1946.
The grievance of the Shias, as During the course of his cross-examination, the
witness gave a description of the
stated in their notice dated 11 April 1945 that the
Commissioner of Waqfs structure of the mosque. The witness states that
there was no door in the east,
included Babri Masjid in the list of Sunni mosques.
The plaint notes that the but he later stated that the door at the east was three
feet higher than him. In his
Masjid was located at Janmasthan Ayodhya. The
suit was dismissed by holding cross-examination, the witness stated that he had
read the Namaz Isha at 8 pm
that the mosque was a Sunni mosque. The Sunni
Central Waqf Board, by a letter on 22 December 1949 in Babri Masjid. He stated
that he remembered that the
dated 25 November 1948 sought an explanation as
to how, upon the death of the eastern gate was locked when Gopal Singh
Visharad filed the suit on 15 January
previous Mutawalli another individual was working
in the mosque. 1950 but did not know about the other gate. In his
cross-examination PW-1
O.8 Proof of namaz
stated that the disputed building was unlocked on 2
704. Several witnesses who deposed on behalf of February 1986 and a Writ
the plaintiffs in Suit 4 stated

476
Petition was instituted pursuant to the opening of he was offering it; he had never seen a puja
locks in February 1986. performed inside the mosque.

PW-1 was unable to recollect information In his cross-examination, the witness stated that
accurately. In his cross-examination, he when he ―came to his senses‖

stated: (at the age of 10-11 years) he noticed that people

frequently visited the disputed
―I do not remember that I mentioned my age 55
years in the affidavit submitted in 1986 with Writ property. He stated however that he did not use that
Petition‖ (the Affidavit of the Writ Petition was way, so he could not say
shown to the witness).‖
whether there were any restrictions on people‘s
When asked about the Writ Petition filed pursuant movements. In his cross
to the opening of the lock, the
examination, the witness stated that he passed the
witness stated the following in the cross- High School examination in
examination:
1961 when he was 21 years old, and the certificate
―It is correct that my memory is weak due to the shows his date of birth as
old age but our Advocate may be knowing about
it.‖ 1944. In his cross-examination, he admitted that his
statement of age as 21 years
The witness was unable to recall when his two
marriages took place. He was not when he finished High School was due to some
misunderstanding.
able to recall the age of his daughter. The lapses in
the memory of the witness There is an evident discrepancy in the statement of
PW-2 in relation to his age,
under cross-examination cast doubt on the
statements contained in the affidavit which casts a cloud of doubt on his testimony. If
the year of his birth is 1944 as
in lieu of the Examination-in-Chief.
stated in his High School certificate, it is difficult
PART O to believe that in 1949 when the

817 mosque was attached, a person who visited the

mosque as a five-year old child
706. Haji Mehmood Ahmed (PW-2): The date of
the Examination-in-Chief of would have accurate recollections of a mosque he
visited 47 years ago.
the witness is 17 September 1976. The witness was
about 58 years old. The 707. Farooq Ahmed (PW-3): The age of the
witness was stated to be about
witness stated that he had offered namaz more than
a hundred times at the ninety years. The witness stated that he used to
offer namaz at Babri Masjid. The
disputed property. The witness stated that he had
been offering five times namaz, PART O

except Friday namaz at Babri Masjid. Namaz was 818

last offered by him on 22nd
witness stated that whenever he heard the Azaan,
December, 1949. According to his account, there while going to Faizabad or
was no restriction on namaz till
coming back, he went for namaz, whatever be the
time. He had last offered

477
namaz in December 1949. After being informed bears his thumb impression, but the signature does
that there may be some trouble, not belong to him.

was asked to lock the door. He locked the door and PART O
kept the keys with him.
819
The witness stated in his cross-examination that
he started offering namaz at the Significantly, the witness stated that the age was
written as 65, but he had
age of 28 along with his father. The witness further
stated that he has been mentioned an approximate age.

seeing people coming to offer namaz at the In cross-examination, the witness admitted that in
disputed property 10 years prior to an application dated 18 March

the incident of 22 December 1949. The witness 1986, his age may have been recorded in the
stated in his cross-examination affidavit as 60 years:

that his father used to manage the mosque. ―In my affidavit I got my age recorded as 60 years
approximately. At present my age is about 90
In his cross-examination, the witness stated that it years. The statement about my age is correct. The
was Jumme-raat on 22 advocate may have recorded my age in the affidavit
approximately. My applications, submitted in 1896
December 1949, when he went to offer prayer as it were rejected there only.‖
was a ‗Magrib Namaz‘ which
The statement of the witness was that he had
gives 27-fold blessings on reciting it. The witness started going to the mosque at the
stated that he also went to offer
age of twenty eight. If the approximate age of the
namaz in a group, early morning. He participated in witness as stated in the second
daily Magrib and Isha namaz.
affidavit (i.e. sixty years in 1986) is accepted, the
He used to go to offer group namaz early morning witness would have been 28
at Babri Masjid. In cross
years old in 1954. He categorically stated that he
examination, he stated that the last namaz called had commenced going to the
was Isha namaz, which took
mosque for offering namaz at the age of twenty-
place on around 20/22 December,1949. He further eight. In that case, the witness
stated that the Moazzin was
would have been unable to offer namaz at the
sleeping on the floor when he went to lock the mosque in 1954, when the
door. The witness clarified that in
mosque was admittedly attached in 1949.
his earlier statement, he had stated by mistake that
he locked the middle door. 708. Mohd Yaseen (PW-4): The date of
Examination-in-Chief of the witness
He stated that he had put separate locks on both the
doors. was 17 October 1996. The age of the witness was
stated to be 66 years. The
The witness stated in his cross-examination that he
had filed a petition to be a witness states that he read Jumme Ki Namaz in
Babri Masjid. Significantly, the
party in the case in 1990. He further stated that he
had seen the affidavit which witness states that he has been reading the Friday
prayers at the spot

478
continuously and has not read any other namaz ―2484. When his statement was found
except Jumma Namaz at the contradictory to the statement of PW 1 who is
plaintiff no. 7 in Suit-4 he justified himself by
disputed property. In his cross-examination, the stating that PW 1 must have given wrong statement
witness stated that he had as is evident from the following: ―If Mr. Hashim
has given any such statement that priests used to
started going to the mosque five years before
sit under said thatched roof, then his
Independence. According to the
statement is wrong.‖ If Hazi Mahboob has stated
witness‘s testimony, his father used to go to Babri that the recluses had surrounded this place from
Masjid to offer Friday namaz. one side for last 15-20 days, then his statement is
wrong.‖ ―Mr. Zaki was the Mutwalli till the
According to the witness, Friday namaz is offered incident of 1949. Mr. Javvad became Mutwalli
at big mosques in the city. after him…If Mr. Farooq has made any such
statement that Mr. Zahoor used to manage the
Before 1949, Friday namaz was either offered at mosque at time of the incident, then the
Babri Masjid or at Keware wali responsibility for its correctness or incorrectness
lies with him. I know only this much that the
PART O
mosque was managed by Mr. Zaki.‖ ―If Mr.
820 Hashim has given a statement that he had carried
out tailoring work only between 1966 to 1976, then
mosque. He states that 400-500 people used to it is his wrong statement.‖
offer Jumme ki Namaz at Babri
PART O
Masjid. If the number exceeded, then about 1000
people could offer namaz 821

together. In the light of his own admissions about his weak

memory as well as other
The witness has given descriptions of the disputed
property as well as the rituals contradictions, the contents of the affidavit filed by
way of Examination-in-Chief
performed there. During cross-examination, when
the attention of the witness must be read with circumspection.

was drawn towards the map in the suit of 1989, he 710. Abdul Rehman (PW 5): The age of the
stated that he had seen the witness was stated to be 71 years.

map, but did not know anything about the map and The witness stated that he had recited the Holy
could not say anything about Quran in Babri Masjid in 1945

it. The witness states that when India got and 1946. PW-5 is not a resident of Ayodhya and
Independence, he was 11-12 years old his village is 18-19 kilometers

(then said that he was 17 years at that time). He away. The witness stated that he recited the Holy
stated that though his memory Quran in Ayodhya over two

has weakened, it does not mean that he is unable to continuous years. When he visited to recite the
remember old incidents. Holy Quran, he used to read

709. Justice Agarwal has pointed out several Friday namaz in Babri Masjid. In his cross-
contradictions in the statements of examination, the witness first stated

PW-4 and the statements of other witnesses: that he does not recollect when he went to Ayodhya
for the first time. Later,

479
during the course of cross-examination, the witness to the masjids where he has read the Holy Quran
stated: and it will be guesswork. The

―When I went to recite Quran Sharif for the first testimony of the witness on the offer of namaz does
time, it was the 1st day of the month of Ramzan not throw light on when in
(then said he used to reach there on 29th Shahban if
the moon appeared and I recited Quran Sharif on point of time namaz was being offered. In the
the same night.) I do not exactly recollect which absence of an approximate
particular day (then said he reached Ayodhya on
reference to the year or years when he prayed at the
29th of Shahban).‖
mosque, the evidence has
The witness stated in his cross-examination that
to be read with this caveat.
when he visited Ayodhya to
711. Mohd. Unis Siddiqi (PW-6): The date of the
recite Quran Sharif, he stayed with his relative Hazi
Examination-in-Chief of the
Pheku (father of PW-2) for
witness is 28 November 1996. The age of the
twelve days. The witness stated that on both the
witness was stated to be 63 years.
occasions when he visited
The witness was enrolled as an advocate on 9 July
Ayodhya, it was summer and he could not enter the
1955 in Lucknow. The
building to recite the Holy
witness states that he went inside Babri Masjid for
Quran due to the intense heat. The outer courtyard
the first time with his elder
was used to recite the Holy
brother, when he was 12-13 years old in the night
Quran. The witness also stated that inside the
of Shabe-raat. He states:
Masjid, he recited Quran Sharif in
―After that I used to go to the Masjid in the night
the second inner courtyard. The witness stated that
of every Shab-e-raat. I have been to the mosque
he had offered namaz in
during day time also. I have offered Namaz only
Babri Masjid once a day. once during day time but have offered Nafle on the
occasion of Shabe-raat. I had offered Namaz during
PART O the day time on the same day, when statues were
placed there. Before that Namaz was offered in
822 group on Jumma (Friday)‖

The witness stated in his cross-examination that he PART O

went to Ayodhya to recite the
823
Holy Quran for the first time during British rule.
He further stated in his cross In cross-examination, he admitted that he had been
involved in the present suit
examination that besides these two occasions when
he recited the Holy Quran but stated that he was only engaged as a stand-by
by the plaintiffs in the suit. He
for twelve days, he has never visited Babri Masjid.
In 1946, when he went to did not get an opportunity to see the papers related
to the case before 1961. The
recite Quran Sharif, he started at 9 pm and about
80-100 people used to come to witness stated that he has never seen Hindu
worship there before 1949.
listen.
With regard to his memory, the witness made the
The witness stated in his cross-examination that he following admission in cross
cannot tell the year of his visit

480
examination: there. I did not offer all the five Namazes there but
certainly offered Namaz of Asar.‖
―…my memory is weak. This weakness has
started since 1986. It is correct that now I The witness stated that namaz was offered at the
sometimes forget the names of my sons also. I have disputed property prior to 22
5 sons, I recognize them. From that very time i.e.
from 1987 my vision has weakened. I was hurt in December 1949. The witness stated that Jumma
my head at that time.‖ Namaz as well as namaz of all
(Emphasis supplied)
five times was also offered at this mosque. During
712. Hasmat Ullah Ansari (PW-7): The date of the Ramzan, Tarabi Namaz was
Examination-in-Chief of the
offered at Babri Masjid. Until 22 December, the
witness was 5 December 1996. The age of the witness states that he had not
witness was stated to be about 65
seen any idol in the Masjid nor did he see anyone
years. The witness stated that he was born at worshipping there. He stated
Ayodhya in 1932. He stated that
that he did not see any Hindus going there for
his date of birth is mentioned as 8 January 1934, worship. In his cross-examination,
but it is wrong. With respect to
the witness stated that he had been offering namaz
his date of birth, the witness made the following regularly at the masjid. When
statement in his cross
he offered namaz for the first time in 1943, he was
examination: 11-12 years old.

―When I got a certificate from the Phofas College The witness stated in his cross-examination that
on completion of my education, I came to know two days before the placement
that my date of birth was wrongly mentioned. I
of idols, he had performed namaz of Asar and 8-10
have not taken any steps to rectify the mistake.‖
people were present. Before
The witness has stated his age as 65 in 1996 and in
offering the namaz of Asar, had offered Jumma
accordance with that, his
Namaz wherein 400-500 people
year of birth would be 1931. He stated that he has
were present. The witness gave a detailed
offered namaz at Babri Masjid
description of the disputed property in
hundreds of times and he had first offered namaz in
his cross-examination.
1943. The witness stated
713. Shri Abdul Aziz (PW-8): The date of the
that a week before the placement of idols, he had
Examination-in-Chief was 20
been regularly offering namaz
January 1997. The age of the witness was stated to
there. He stated in his cross-examination:
be 70 years. The witness
PART O
states that he was born in 1926 and must have been
824 about 10 years old when

―I did not offer namaz at this mosque on 22nd first offered namaz at the mosque. He states that he
December,1949. I had not offered namaz there has offered namaz hundreds
even on 21st December, 1949 too. I have corrected
of times. The witness states that he has offered
my statement that I had been rarely offering namaz
―Friday Namaz‖, ―Johar Namaz‖,
there up to a week before the placing of the idol

481
―Asar Namaz‖ and ―Namaz of Shabe-raat‖ at the mosque, he was 14 years old. Though the witness
mosque. The witness states that stated that he had offered

the offering of namaz was discontinued after an namaz after 1947, he could not state even the
idol was placed there in 1949. approximate period during which

PART O namaz was offered. Justice Agarwal noted that the

witness was unable to
825
recollect events from memory.
In his cross-examination, the witness stated that he
had offered the last namaz 715. Jaleel Ahmed (PW-14): The date of
Examination-in-Chief of the witness
on the Friday immediately before 22 December.
Had also offered the namaz of was 16 February 1999. The age of the witness was
stated to be 78 years old.
Shabe-raat in this mosque after two-three years of
offering the first namaz in the The witness stated that he has offered namaz at
Babri Masjid. In his cross
mosque. According to the witness, until
Independence, he had been offering PART O

namaz for the previous 13-14 years. 826

714. Shri Saiyad Akhlak Ahmed (PW-9): The age examination, it emerged that Ayodhya is at a
of the witness was stated to distance of 2 kms from his house.

be about 60 years. The witness stated that he The witness stated that he has offered both Isha and
offered Jumma namaz and the Jumma Namaz at the

Panchwakti namaz at the mosque. Maulana Abdul Masjid. According to his statement, the witness
Ghaffar was the Imam of Babri looks after the Jinnati Masjid

Masjid and Mian Ismail was the Moazzin. He located at Mohalla Nivava at Faizabad. The witness
stated in his cross-examination that stated in his cross

as far as he remembers, the first namaz he offered examination that he last offered namaz at Babri
at the mosque was after Masjid at the age of 24-25. He

Independence and it was Namaz-e-magrib. He stated that he had offered Juma Namaz at the
stated in his cross-examination disputed site on several

that he had gone to offer namaz at the mosque five occasions. He stated that he did not offer Tarabi
or six days before 22-23 Namaz at the disputed site. In

December, 1949. The number of persons present his cross-examination, the witness gave a
could be 200 to 400, or even description of the disputed property.

500. According to the witness‘s statement in his In his cross-examination, the witness stated that he
cross-examination, he would is about 78 years old and

have been 13-14 years old when he had gone to cannot tell how long he has been offering namaz
offer Namaz-e-magrib for the before the placing of the idol

first time. He further stated that when he offered and offering of Juma Namaz. He stated that he
his last Namaz-e-jumma in the cannot tell if it was two months or

482
the last five to six years since he was offering first gone to the disputed structure. The witness
namaz at the disputed property. He later stated that when he went to

further stated that he had offered Isha Namaz at the the disputed property for the first and second time,
disputed site once. he saw every part of the

716. Dr Hashim Qidwai (PW-21): The date of building, inside and outside. He gave a detailed
Examination-in-Chief of the description of the domes and

witness was stated to be 22.11.01. The age of the pillars present. He stated that namazis were present
witness was stated to be about in the domed structure as

80 years. The witness stated that he visited well as courtyard.

Faizabad for the first time in
In his cross-examination, the witness stated that he
December 1939, when his father was posted at could not go to Faizabad or
Faizabad. That month, he went to
Ayodhya since May 1941. Between December
see the Babri Masjid with members of his family 1939 and May 1941, he was not
and performed Magrib Namaz at
permanently living at Faizabad and used to go there
the site. The witness stated that upto 1941, he used intermittently during
to go to Faizabad every
vacations. In cross-examination, the witness stated
vacation. In October 1941, the father of the witness that he has seen the disputed
was transferred to Lucknow
property from outside and inside, but cannot tell
as Additional City Magistrate. The witness stated about the boundary in detail,
that during the period, he
since a long period of 60-62 years had elapsed.
offered Magrib-ki- Namaz 15-20 times, Aasir
Namaz 4 to 5 times and Friday 717. Mohd. Qasim Ansari (PW-23) (Brother of
PW-1): The date of the
Namaz 2-3 times in the mosque. About 100 persons
attended the Magrib-ki Examination-in-Chief was 16 January 2002. The
age of the witness was stated to
PART O
be 74 years. The witness stated that he had
827 knowledge of the disputed property,

Namaz, 40-50 persons attended the Aasir Namaz which was located at a distance of 3 furlongs from
and about 250-300 persons his house. The witness stated

performed Jumma Namaz. The witness stated that that he had recited namaz at the mosque for about
In 1984, he was elected as a 8-9 years. He had recited the

member of the Rajya Sabha and remained a PART O

Member of Parliament for six years.
828
He stated in his cross-examination that when he
went to offer namaz for the first namaz of Fazir Zohar, Asir, Magrib, Isha and
Tavri. He stated that he had recited
time in 1939, he did not make any specific enquiry
with regard to the damaged namaz for the last time on 22 December, 1949
when he recited the Isha Namaz.
portions of the mosque. He stated that it was 27
December, 1939 when he had

483
He stated that four years after the placing of idols, ―I had for the last time offered namaz at the
the Muslims gave a notice to mosque two days before the incident in which the
idol was placed there.‖
the government that they would perform a farewell
namaz there. When they went ―I did not offer namaz at this mosque on 22nd
December, 1949.‖
to perform the farewell namaz, the police stopped
and arrested them. Stated in ―I did not offer namaz there on 22nd December,
1949 as well.‖
the cross-examination, when he went to recite
namaz for the first time, he was in 718. Sibte Mohd Naqvi (PW-25): The date of
Examination-in-Chief of the
the first grade.
witness was 5 March 2002. The age of the witness
In his cross-examination the witness stated that the was stated to be 76 years.
disputed site is a waqf, but
The witness had seen the structure from afar. He
he has no knowledge about who the waqif of the stated that he had been visiting
mosque is. In his cross
Ayodhya since 1948 and had seen namazis going to
examination, the witness stated that he had Babri Masjid. The witness
performed Isha Namaz at the
stated that he had not seen anyone performing
disputed mosque on 22 December, 1949 at about namaz at the disputed property.
7:30 pm. Later he stated that
Since the witness has not himself visited the
he could not tell when he recited namaz for the last disputed property or actually seen
time at the disputed structure.
anyone perform namaz at the site, the evidence
It is of relevance to refer to the observations of tendered by PW-25 is hearsay.
Justice Agarwal with respect to
The evidence of some of the witnesses deposing for
the statements of PW-23. He noted the following the plaintiff in Suit 4 have
statement made by PW-23:
contradictions and inconsistencies as noted earlier.
―Farooq was with me when I had gone to offer The court must however
Isha namaz at the disputed structure for the last
time…I was also accompanied by Hashmat Ullah assess the staements in a robust manner, making
at the ‗Isha‘ namaz offered on 22nd December, due allowance for the normal
1949.‖
failings of memory. Many of the statements in the
Justice Agarwal noted that the statement was not affidavits filed by the witnesses
corroborated by Farooq (PW-3)
in their Examination-in-Chief have sweeping
and Hashmat Ullah (PW-7). claims and generalisations which

PW-3 had stated: are not validated during the course of cross-
examination. Assessing the
―Rahman Saheb and Unus Saheb were with me at
the Isha namaz on 22nd December, 1949.‖ statements it cannot be concluded that namaz was
not being offered at all at the
PW-3 therefore, did not corroborate the statement
of PW-23. PW-7 had stated thus: disputed property. The oral statements in evidence
have to be evaluated with the
PART O
documentary evidence. The report dated 10
829 December 1949 of Muhammad

484
Ibrahim, Waqf Inspector notes: The report of the Waqf Inspector belies the claim
of several witnesses that they
―It came to my knowledge that the fear of Hindus
and Sikhs, no person offers prayers in the mosque. had offered namaz on 22 December 1949. It is
If any person stays back in the mosque during night stated in the above report that 23
he is very much harassed by Hindus. There is a
temple of the Hindus outside December 1949 was the day of Jumma. It can be
reasonably concluded that the
PART O
last Jumma namaz must have been held on Friday,
830 16 December 1949. There is

the courtyard where many Hindus live. They abuse evidence on record to hold that Muslims offered
any Muslim who goes to the Masjid. I visited the Friday namaz at the mosque and
site and on enquiry found that whatever is stated
above is correct. People also said that there is had not completely lost access to or abandoned the
danger to the mosque from Hindus in the form of disputed property.
weakening its walls. It appears proper to submit in
PART O
writing to the Deputy Commissioner, Faizabad that
Muslims offering prayers in the mosque should not 831
be harassed…‖ (Emphasis supplied)
O.9 Placing of idols in 1949
The report indicates that the offering of prayers by
the Muslims at the mosque 719. On the night intervening 22/23 December
1949, about fifty to sixty persons
was being obstructed by the Hindus and Sikhs and
no namaz was being offered. belonging to the Hindu community placed idols
below the central dome of Babri
There is another report dated 23 December 1949 of
the Waqf Inspector, who Masjid. The events preceding and following upon
this incident are set out below:
stated that he had gone to inquire into the condition
of the Babri Masjid and (i) The posting of a police picket on 12 November
1949;
Qabrastan on 22 December 1949. He noted that it
had been three months since (ii) A letter dated 29 November 1949 of the
Superintendent of Police,
Baba Raghunath‘s visit to the Janmasthan; a month
after his departure, Faizabad to K K Nayar, Deputy Commissioner and
District Magistrate
thousands of Hindus, pujaris and pandits gathered
there for Ramayan Path. It apprehending that Hindus were likely to force an
entry into the mosque
was stated in the report:
with the object of installing the idols of the deity;
―…Now the Masjid remains locked. No azaan is
allowed nor Namaaz performed except on the day (iii) A report dated 12 December 1949 of the Waqf
and time of Jumaah. The lock and the keys remain Inspector that Muslims
with Muslims. But the police does not allow them
to open the lock. The lock is opened on the day of were being harassed by Hindus when they sought
Jumaah, i.e. Friday for two or three hours. During to pray in the mosque;
this period, the Masjid is cleaned and Jumaah
(iv) A communication dated 6 December 1949 of
prayers are offered. Thereafter it is locked as
the Deputy Commissioner
usual…It is Jumaah-Friday-today…‖ (Emphasis
supplied)

485
and District Magistrate to the Home Secretary, Lord Ram under the central dome of the mosque.
Government of Uttar The plaintiffs in Suit 4 and 5 did

Pradesh requesting the State Government not to not dispute that the idols of the deity were placed
give credence to the within the central dome during

apprehensions of the Muslims regarding the safety the intervening night of 22/23 December, 1949.
of the mosque; Nirmohi Akhara however, denied

(v) The lodgment of an FIR after the incident of the occurrence of the event to suggest that the idols
22/23 December 1949; were always present below

(vi) A letter dated 26 December 1949 of K K Nayar the central dome of the mosque.
to the Chief Secretary
The following issues were framed by the High
expressing surprise over the incident which had Court in Suits 1, 4 and 5:
taken place. The District
In Suit 1, Issue 2 reads:
Magistrate declined to carry out the orders of the
State Government to ―Are there any idols of Bhagwan Ram Chandra Ji
are his Charan Paduka situated in the place of suit?‖
have the idols removed from the mosque;
In Suit 4, Issue 12 reads:
(vii) A letter dated 27 December 1949 of K K
Nayar stating that he would not be ―Whether idols and objects of worship were
places inside the building in the night intervening
able to find any Hindu who would undertake the 22nd and 23rd December, 1949 as alleged in
removal of the idols and paragraph 11 of the plaint or they have been in
existence there since before? In either case, effect?
proposing that the mosque should be attached by
excluding both the In Suit 5, Issue 3A reads:

Hindus and Muslims with the exception of a ―3(a) Whether the idol in question was installed
minimum number of pujaris under the central dome of the disputed building
(since demolished) in the early hours of December
PART O 23, 1949 as alleged by the plaintiff in paragraph 27
of the plaint as clarified in their statement under
832
Order 10 Rule 2 CPC.‖
and parties should be referred to the civil judge for
PART O
adjudicating of rights;
833
and
Justice S U Khan and Justice Sudhir Agarwal held
(viii) The passing of a preliminary order under
that the idols were placed
Section 145 on 29 December
under the central dome of the disputed structure
1949 in pursuance of which the receiver took
within the inner courtyard during
charge on 5 January 1950
the intervening night of 22/23 December, 1949.
and made an inventory of the attached property.
Justice DV Sharma also held that
The Sunni Central Waqf Board contended in para
Nirmohi Akhara had failed to establish that the
11 of their plaint in Suit 4 that
idols had been in existence under
on 23 December, 1949, the mosque was desecrated
the central dome prior to the intervening night of
by the installation of idols of
22/23 December 1949.

486
In Suit 1, a written statement was filed by allegation regarding placing of idols inside any
defendant nos 1 to 5, where it was mosque is a pure falsehood.‖

pleaded in paragraph 22 that untill 16 December, In Suit 5, para 27 of the plaint states:
1949 when namaz was offered,
―…Ultimately, on the night between the 22nd
no idol existed under the central dome. In the 23rd December, 1949 the idol of Bhagwan Sri
written statement filed by defendant Rama was installed with due ceremony under the
central done of building also.‖
No 6, it was stated that the idols of Lord Ram were
surreptitiously and wrongly In his statement under Order 10 Rule 2 of the CPC
recorded on 30 April, 1992,
installed in the mosque on the night of 22
December 1949. plaintiff No 3 in Suit 5 stated:

In Suit 4, defendant nos 1 and 2 filed their written ―In the early hours of December 23, 1949, the idol
statements denying that the of Bhagwan Sri Ram Lal, which was already on
Ram Chabutra was transferred to the place where
plaintiffs in Suit 4 were in possession of the he presently sits, that is, under the central dome of
disputed site. It was stated that the disputed building. I was not personally present
at that time at the place. This information was
assuming the plaintiffs had possession, this ceased
conveyed to me by the Paramhans Ram Chandra
in 1934, after which the
Das of Digamber Akhara. This transfer of the idol
defendants have been in settled possession. In the was done by Paramhans Chandra Das and Baba
written statement filed by Abhi Ram Das and certain other persons whose
names I do not remember the moment…‖
defendant nos 3 and 4 (Nirmohi Akhara and
Mahant Raghunath Das With regard to the witnesses who were examined
on behalf of the plaintiffs of Suit
respectively), the averment in paragraph 11 of the
plaint in Suit 4 was denied. It 4, the High Court recorded that none of the
witnesses were present on the spot at
was contended that the plaintiffs in Suit 4 have
wrongly referred the building as the relevant time. Hence, their statements would
not be relied upon for a
Babri mosque whereas it has always been the
temple of Janmabhumi where determination on this issue. OPW-1 and OPW-2
who appeared on behalf of the
idols of Hindu Gods were installed. The relevant
extract reads: plaintiffs in Suit 5 had, in their statement, stated
that the idols were shifted from
―11. That the contents of para 11 of the plaint are
totally false and concocted. The alleged mosque the Ramchabutra on 22/23 December 1949. OPW-1
never existed nor does it exist even now and the (Mahant Paramhans
question of any Muslim or the Muslim community
Ramchandra Das) in his statement stated that the
having been in peaceful possession of the same and
idols were placed on 23
having recited prayers till 23.12.1949 does not
arise. The building which the plaintiffs have been December 1949 after being removed from the
wrongly referring as Babari Mosque is and has platform:
always been the Temple of Janam Bhumi with
idols of Hindu Gods installed therein. The plaint ―The place termed as ‗Garbh-grih (sanctum
sanctorum) by me, is the birthplace of Ramchandra
PART O according to my belief and all the Hindus. The very
place where the idols were placed on 23 December
834
1949, after being removed from the platform, is

487
considered as Janmsthan by me and even before January 1950, the receiver took charge of the inner
installation of the idols, that place was considered courtyard and prepared an
Janmbhumi by me.‖
inventory of the attached properties.
PART O
The stance of the plaintiffs in Suit 4 and 5 and the
835 statements of the witnesses on

The statement of OPW-2 was to a similar effect. record belie the claim of the Nirmohi Akhara that
the idols existed under the
The witnesses who have been examined on behalf
of Nirmohi Akahra supported central dome prior to the incident of 22/23
December 1949. It was following this
the case that the idols were present under the
central dome prior to the PART O

intervening night of 22/23 December, 1949. The 836

plaintiffs in Suit 3 examined 20
incident, that the property was attached. On a
witnesses (DW - 3/1 - DW. 3/20). DW-3/1 (Mahant preponderance of probabilities
Bhaskar Das) stated that no
which govern civil trials, the finding of the High
incident occurred in the intervening night of 22/23 Court that the idols of the deity
December 1949. He further
were installed in the intervening night of 22/23
stated that he was sleeping in the premises on that December 1949 commends itself
date.
for our acceptance.
The statements made by DW 3/1 have been
examined and rejected in another 720. Dr Dhavan‘s assertion of the claim of the
Sunni Central Waqf Board to the
part of this judgment. The explanation of the
witness that he was asleep in the disputed site is based on the Janmasthan temple of
the Hindus being outside the
disputed premises on 22/23 December 1949 and
that no incident had taken place courtyard and the offering of namaz by the Muslim
in the mosque. The
is a figment of his imagination.
submission that the temple of the Hindus ―was
On the night of 22 December 1949, the idols of outside the courtyard‖ is
Lord Ram were placed inside the
ambiguous and contrary to the evidence. If the
mosque imperilling. Acting on an FIR, the expression ―courtyard‖ is used to
Additional City Magistrate, Faizabad
denote both the inner and outer courtyards, the
cum-Ayodhya issued a preliminary order under submission is belied by the fact
Section 145 on 29 December
that there was a consistent pattern indicating
1949, treating the situation to be of an emergent possession and worship by the
nature. Simultaneously, an
Hindus at the outer courtyard after the setting up of
attachment order was issued and Priya Datt Ram, the railing in 1856-7. The
the Chairman of the Municipal
offering of worship at Ramchabutra which was
Board of Faizabad was appointed as the receiver of situated in close proximity to the
the inner courtyard. On 5

488
railing coincided with the attempt by the colonial occurrence of incidents during which the use of the
administration, post the mosque inside the railing

communal incident of 1856-7, to conceive of the became contentious; (vi) report of the Waqf
railing as a measure to maintain Inspector complaining of Muslims

peace and order. The extensive nature of worship being obstructed in proceeding to the mosque for
by the Hindus is indicated by namaz; (vii) access to the outer

the existence of specific places of worship and the area of the disputed property beyond the railing
permission by the being exclusively with the

administration for the opening of an additional Hindus; and (viii) the landlocked nature of the area
point of entry in 1877 due to a inside the railing.

large rush of devotees. In the face of a consistent 721. In so far as the inner courtyard is concerned, it
pattern of worship by the appears that the setting up

Hindus in the outer courtyard after 1856-7, the of the railing was a measure to ensure that peace
documentary material does not prevailed by allowing the

indicate either settled possession or use of the outer worship of the Muslims in the mosque and the
courtyard by the Muslims continuation of Hindu worship

(except for the purpose of gaining access to the outside the railing. In so far as the worship by the
mosque). The presence of the Muslims in the inner courtyard

Hindus in the outer courtyard and their occupation is concerned, the documentary material would
was not merely in the nature of indicate that though obstructions

a prescriptive right to enter for the purpose of were caused from time to time, there was no
worship. On the contrary, the abandonment of the structure of the

PART O mosque or cessation of namaz within.

837 722. In order to determine the question of title one

needs to analyse the nature
occupation and possession of the Hindus is evident
from: (i) the exclusive of the use of the disputed premises by both
Muslims and Hindus.
presence of Hindu places of worship in the
disputed property which lay beyond PART O

the railing; (ii) evidence of worship by the Hindus 838

at these places of worship; (iii)
O.10 Nazul land
recognition by the administration of the need to
open an additional entry gate on 723. Before the High Court, it was not disputed by
the litigating parties that the
the northern side occasioned by the large presence
of devotees; (iv) absence of plot of land in which the disputed structure existed
was recorded as Nazul land
any evidence to indicate that the Muslims had
asserted any right of possession or (i.e. land which is owned by the government),
bearing plot No. 583, Khasra of
occupation over the area of the disputed property
beyond the railing; (v)

489
1931 of Mohalla Kot Ram Chandra known as Ram confiscation statement of each district and to
Kot, City Ayodhya, Nazul present it before the government for

Estate Ayodhya. The number of the plot in which orders. The Kingdom of Oudh was annexed by the
the disputed structure was East India Company in 1856.

situated was not disputed and it was admitted that After the revolt broke out in May 1857, a
the plot was recorded as substantial area of the North Western

Nazul land in the first settlement of 1861 and Provinces vested in the Government. As a
continued as such on the date of consequence of the failure of the

the institution of the suit. revolt, Lord Canning as the Governor General
issued a proclamation on 15 May
724. In fact, in paragraph 24(B) of the written
statement of the UP Sunni Central 1858 confiscating proprietary rights in the soil with
the exception of 5 or 6
Board of Waqf in Suit 5, it has been stated:
persons who had supported the colonial
―The land in question undoubtedly belonged to government. This land was initially
the State when the mosque in question was
constructed on behalf of the State and as such it resettled for three years and then permanent
cannot be said that it could not be dedicated for the proprietary rights were given to
purposes of the mosque.‖
talukdars and zamindars by the grant by sanad
Justice Sudhir Agarwal has traced the historical under the Crown Grants Act. With
context by referring to two orders
effect from 1 November 1858, the entire territory
issued under the authority of the Lt. Governor of under the control of the East
the North-Western provinces in
India Company was placed under the British
October 1846 and October 1848 wherein, after the Crown. In the first settlement of
words of ‗Nazul property‘ its
1861, the land in dispute was shown as Nazul, a
English meaning was indicated as ―escheats to the status which was continuously
government‖. On 20 May
maintained.
1845, the Sadar Board of Revenue issued a circular
order in reference to Nazul 726. Sri Ram Sharan Srivastava (DW 2 /1-2), who
was the Collector at
land stating:
Faizabad between July 1987 and 1990 has deposed
―The Government is the proprietor of those land in the following terms:
and no valid title to them can be derived but from
the Government.‖ ―The records of three revenue settlements of year
1861,189394 &1936-37 were available in the
PART O revenue record room under me. These records
included khasra, khatauni, khewat and the reports
839 of the three settlements were available separately
besides them. The survey report of 1931 in respect
725. Under the circular dated 13 July 1859 issued
of nazul land, was also included besides the three
by the Government of North
settlements and reports. The khasra, khatauni &
Western Provinces, every Commissioner was khewat prepared on basis of survey of 1931, were
required to maintain a final also available. In the records of all the three
settlements and the nazul survey, the disputed site

490
has been mentioned as Janmsthan and at places the year 1931 of Mohalla Kot Ramchandra, it
Ramjanmbhumi has also been mentioned.‖ would effectively not impact upon

PART O the claims of the two communities each of whom

has asserted title to the land.
840
PART O
The witness further stated:
841
―The numbers of the last settlement were 159, 160
and 160A, which I do not remember. Janamsthan O.11 Waqf by user
was written against all these numbers. The plot
number changes in every settlement. The plot 728. The documentary evidence relied upon by the
numbers 159 and 160 given by me, were the plaintiffs in Suit 4 to
numbers of the last settlement. The numbers
demonstrate that the mosque stood on dedicated
concerned to it in the Nazul survey were 583, 586,
land originates after the
which are within my memory.‖
colonial annexation of Oudh and after the year
He then made a reference to certain interpolations
1856. This was fairly admitted by
in the record as follows:
Dr Dhavan, learned Senior Counsel appearing in
―In no number of the records of first and second
behalf of the plaintiffs in Suit 4.
settlement, there was any mention of mosque, royal
mosque or Janmsthan mosque. In certain records of The plaintiffs in Suit 4 were unable to establish a
khasra, khatauni & khewat of the third settlement, specific grant of the land as a
there were interpolations and Janmsthan Masjid or
Jama Masjid were interpolated in certain numbers foundation of legal title prior to the annexation of
of the disputed site. I had sent its report. I had sent Oudh or upon the transfer of
this report in the behalf to the Board of Revenue in
1989. An enquiry was held on my report. Some power to the colonial administration after 1857.
officer of Board of Revenue had come. The
729. An attempt was made at an advanced stage of
investigator was an officer subordinate to the
the hearing to contend that
Secretary, Board of Revenue and was not a
member. The records in which interpolation had the disputed site marked out by the letters A B C D
been made and whose report I had submitted, were is waqf property, not by virtue
never corrected because the matter was pending in
Court.‖ of a specific dedication, but because of the long
usage of the property as a site of
727. There can be no dispute about the status of the
land as Nazul land. religious worship by the Muslim community. Dr
Dhavan, learned senior counsel
However, while recording this, it is necessary to
bear in mind that the state appearing on behalf of the plaintiffs in Suit 4
contended that the concept of a
government indicated during the course of the trial
before the High Court that it waqf has a broad connotation in Islamic Law.
Hence, it was urged that even in
was not asserting any interest in the subject matter
of the dispute and was not the absence of an express dedication, the long use
of the disputed site for public
contesting the suit. It was in these circumstances
that the High Court held that worship as a mosque elevates the property in
question to a ‗waqf by user‘.
though the land is shown to be continued as Nazul
plot No. 583 of the Khasra of

491
To support this proposition, Dr Dhavan contended use of the Muslims in general, as a place of
that since the construction of worship and performance of religious ceremonies.‖

the mosque by Emperor Babur in 1528 till its There being no specific document to establish a
desecration on 22/23 December dedication, the plaintiffs, during

1949, namaz has been offered in the mosque. the course of submissions, fall back upon the
Hence, the disputed property has pleading in regard to long use of

been the site of religious worship. Further, he urges the mosque as a site for religious worship. In
that the Muslims have been paragraph 2 of the plaint, the

in settled possession of the disputed property and pleading is as follows:

had used the mosque for the
―2. That in the sketch map attached herewith, the
PART O main construction of the said mosque is shown by
letters A B C D and
842
PART O
performance of public religious worship. Thus,
despite the absence of a deed of 843

dedication, the disputed site has been used for the land adjoining the mosque on the east, west,
public religious worship for over north and south, shown in the sketch map attached
herewith, in the ancient graveyard of the Muslims,
four centuries, resultingly constituting its character covered by the graves of the Muslims, who lost the
as waqf property by long use. lives in the battle between emperor Babr and the
previous ruler of Ajodhiya, which are ahown in the
730. This contention raises two points for
sketch map attached herewith. The mosque and the
determination: First, whether the
graveyard is vested in the Almighty. The said
notion of a waqf by user is accepted as a principle mosque has since the time of its construction been
of law by our courts; and used by the Muslims for offering prayers and the
graveyard are in Mohalla Kot Rama Chander also
second, as a matter of fact, whether its application known as Rama Kot Town, Ayodhya. The Khasra
is attracted in the present number of the mosque and the graveyard in suit are
shown in the schedule attached which is part of the
case. plaint.‖

Pleadings in Suit 4 (Emphasis supplied)

731. In the first paragraph of the plaint, the 732. A waqf is a dedication of movable or
plaintiffs set up the case that on its immovable property for a religious or

construction in 1528 AD by or at the behest of charitable purpose recognised by Muslim law.

Babur, the mosque was dedicated Ordinarily, a waqf is brought into

as a site of religious worship for the Muslims to existence by an express act of dedication in the
offer namaz: form of a declaration. Upon

―1. That in the town of Ajodhiya, pargana Haveli pronouncing the declaration, the property sought to
Oudh there exists an ancient historic mosque, be dedicated is divested from
commonly known as Babri Masjid, built by
Emperor Babar more than 443 years ago, after his the wakif as the person making the dedication and
conquest of India and his occupation of the vests in the Almighty, Allah. A
territories including the town of Ajodhiya, for the

492
waqf is a permanent and irrevocable dedication of income of the waqf shall be spent for education,
property and once the waqf is development, welfare and such other purposes as
recognised by Muslim law,
created, the dedication cannot be rescinded at a
later date. The property of a and ―waqif‖ means any person making such
dedication‖
validly created waqf is inalienable and cannot be
sold or leased for private gain. (Emphasis supplied)

733. Muslim law does not require an express The statutory definition of a waqf recognises the
declaration of a Waqf in every validity of a waqf established by

case. The dedication resulting in a waqf may also use and not by dedication. Similarly, Mulla in his
be reasonably inferred from the book on ―Mahomedan Law‖

facts and circumstances of a case or from the states:

conduct of the wakif. In the
―…if land has been used from time immemorial
absence of an express dedication, the existence of a for a religious purpose, e.g., for a mosque, or a
waqf can be legally burial ground or for the maintenance as a mosque,
then the land is by user wakf although there is no
recognised in situations where property has been evidence of an express dedication‖.361
the subject of public religious
360 Title changed from
use since time immemorial. This concept of a waqf ‗Waqf Act‘ to the ‗Auqaf Act‘ by virtue of the
by user has also found Waqf (Amendment) Act 2013 361 Mulla‘s
Mahomedan Law, 14th Edition at page 173
PART O
PART O
844
845
statutory recognition in Section 3(r) of the Waqf
Act,360 1995 which defines a In his submissions on waqf by user, Dr Dhavan has
adverted to several
―waqf‖ as:
authorities that establish the contours of the
―(r) ―waqf‖ means the permanent dedication by
doctrine of waqf by user.
any person, of any movable or immovable property
for any purpose recognised by the Muslim law as 734. The doctrine of waqf by user received judicial
pious, religious or charitable and includes – recognition in the decision

(i) a waqf by user but such waqf shall not cease to of the Privy Council in The Court of Wards for the
be a waqf by reason only of the user having ceased property of Makhdum
irrespective of the period of such cesser;
Hassan Bakhsh v Ilahi Bakhsh.362 The case
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan concerned a public graveyard in
or by any other name entered into a revenue record;
Multan where a prominent Muslim saint was
(iii) ―grants‖, including mashrat-ul-khimdat for buried. The Court of Wards, acting
any purpose recognised by the Muslim law as
pious, religious or charitable; and for the property of Makhdum Bakhsh, proposed to
sell certain property within the
(iv) a waqf-alal-aulad to the extent to which the
property is dedicated for any purpose recognised by area of the graveyard on which no graves existed.
Muslim law as pious, religious or charitable, The Muslim residents of
provided the then the line of succession fails, the

493
Multan sought an injunction restraining the settlement as a qaburistan but there is no direct
proposed sale on the ground that the evidence to establish the dedication. … in light of
the evidence of a number of witnesses examined on
entire graveyard was inalienable waqf property due behalf of the plaintiffs, whose evidence he [the
to its long use as a public Subordinate Judge] has believed has come to the
conclusion that the Mohamedan public used the
graveyard of the Muslim community. Lord
land as their burial ground until the Municipal
Macnaghten held:
Board prohibited further interments in that land
―Their Lordships agree with the Chief Court in about 40 years ago. Thus, in the present case, the
thinking that the land in suit forms part of a finding about the land in suit being a public
graveyard set apart for the Mussulman community, graveyard is based upon the evidence of long
and that by user, if not by dedication, the land is user… The rule which allows evidence of user to
Waqf.‖ take the place of dedication is a rule of necessity. In
the case of old wakf it is not possible to secure
The Privy Council recognised that absent an direct evidence of dedication and also it has been
express deed or act of dedication, a ruled that even in the absence of such direct
evidence, a Court can hold a wakf to be established
waqf can be recognised by long use. on evidence of long user…‖

735. The above decision was followed by the Oudh (Emphasis supplied)
Chief Court in Abdul
736. In some cases, courts were faced with a
Ghafoor v Rahmat Ali.363 The plaintiffs sought a situation where property was
declaration that the suit
used as waqf property since time immemorial and
property was a public graveyard and the defendant it was not practical to seek
was not entitled to construct
formal proof in the form of a deed of declaration. A
any structure on it. The graveyard in question had specific document of
been closed to the public by
dedication may be unavailable after a long lapse of
the Municipal Board for forty years. The defendant time but the use of the
argued that the plaintiffs had
362 ILR (1913) 40 Cal 297 363 AIR 1930 Oudh property for public religious or charitable purpose
245 may have continued since time

PART O immemorial. Hence, despite the absence of an

express deed of dedication,
846
where the long use of the property as a site for
not established the use of the graveyard till the suit public religious purpose is
in question, and that by non
established by oral or documentary evidence, a
use for forty years, it had lost its characteristic as a court can recognise the
waqf. In holding that the
existence of a waqf by user. The evidence of long
graveyard continued to be a public waqf, Justice use is treated as sufficient
Srivastava, speaking for the
though there is no evidence of an express deed of
Oudh Chief Court held: dedication.

―4. … It is well settled that a wakf may, in the PART O

absence of direct evidence of dedication, be
established by evidence of user. The land in suit 847
was recorded at the time of the first regular

494
737. In Miru v Ram Gopal364 the plaintiff was a The long use of the ‗katcha‘ mosque led the court
zamindar of the property. One to recognise the existence of a

Rahim Baksh had occupied the property and built a public waqf. This was not a case involving a few
makeshift or ‗katcha‘ platform isolated instances of worship,

for offering prayers. As of 1904, prayers were but the persistent use of the mosque by the resident
being offered by local Muslim Muslim community prior to

residents at this ‗katcha‘ mosque. The Muslim 364 AIR 1935 All 891
residents, who were the
PART O
defendants sought to build a permanent structure of
a mosque at the site. This 848

was resisted by the plaintiff, who sought an 1904. This was demonstrated by documentary
injunction for restraining construction evidence showing the existence of

of the new mosque. The court observed that the a mosque at the plot. Significantly, public worship
khasra for the plot stated, at the mosque was permitted

―masjid‖. Justice Bennet, speaking on a Division by the zamindar himself. In these circumstances,
Bench of the Calcutta High the Allahabad High Court held

Court, stated: that the land was not the private property of the
zamindar, but a public waqf by
―…[In] The present case there is a finding that the
plot has long been used for a mosque and that the user. There are prescient words in the concurring
use has been by the Muhammadan inhabitants of opinion of Chief Justice
the locality and not merely by a particular tenant
Sulaiman in the case:
who allowed other people to come there for the
purpose of prayer… ―But where a building has stood on a piece of
land for a long time and the worship has been
It has also been held by their Lordships of the Privy
performed in that building, then it would be a
Council in the case of the Court of Wards v. Ilai
matter of inference for the court which is the Judge
Bakhsh (2) that a graveyard by user became wakf.
of facts, as to whether the right has been exercised
We do not think that the provisions of the
in that building for such a sufficiently long time as
Easement Act or of any part of chapter IV in regard
to justify the presumption that the building itself
to license apply where a zamindar allows the
has been allowed to be consecrated for the purpose
Muhammadan population to use a building as a
of such rights being performed…‖
mosque. … In such a case we consider that where
there is a finding that a mosque exists, this The question whether the use of a building or
necessarily implies that there is no longer any property for public religious worship
question of easement or use of license. Under
Muhammadan law, the mosque is the property of has satisfied the legal requirements to be
God and not the property of the zamindar. Learned recognised as a public waqf is a matter
counsel for the plaintiff objected that there was no
case of a transfer as is necessary for transfer of of evidence. It is a ―matter of inference‖ for the
property, but we consider that consent of the court, having examined the
zamindar to use of a building as a mosque is
evidence on record, to determine whether the use of
sufficient.‖
the property has been for
(Emphasis supplied)
sufficiently long and consistent with the purported
use to justify the recognition of

495
a public waqf absent an express dedication. Given ―20. … It is evident that there was no proof of
the irrevocable, permanent express dedication up to the year 1880 nor has any
been produced since, therefore the only question is
and inalienable nature of a waqf, the evidentiary whether there is evidence of user and if so, user of
threshold for establishing a waqf what.

by user is high, as it results in a radical change in …

the characteristics of ownership
70. After a careful survey of the evidence, we have
over the property. reached the following conclusions:

738. The principle of a waqf by user has also found (1) that the old mosque as it stood in 1880 is
recognition in the proved to be wakf property but that nothing beyond
the building and the site on which it stood is shown
jurisprudence of this Court. The decision in the
to have been wakf at that date;
case of Faqir Mohamad Shah v
(2) that this property has been added to from time
PART O
to time and the whole is now separately demarcated
849 and that the additions and accretions form a
composite and separate entity as shown in the
Qazi Fasihuddin Ansari365 concerned two distinct plaintiffs‘ map. This is the area marked ABCD in
time periods: the period from that map;

circa 1681 to 1880 and the period from 1880 to (3) that this area is used by the public for religious
1956. As of 1880, there existed purposes along with the old mosque and as the area
has been made into a separately demarcated
an ‗old mosque‘ which the contesting parties compact unit for a single purpose, namely
admitted was waqf property. collective and individual worship in the mosque, it
must be regarded as one unit
Subsequent to 1880, the defendant, being the
mutawalli of the ‗old mosque‘, 365 AIR 1956 SC 713

increased its size and built various structures on PART O

adjacent properties. Some were
850
used by him in his personal capacity and some of
these structures were used by and be treated as such. The whole is accordingly
now wakf;
the public for worship. Cumulatively, these
structures constituted the ‗new …

mosque‘. The resident Sunni community, as (7) that the rest of the property in suit is not shown
plaintiffs, sought a declaration that to be wakf or accretions to the wakf estate. It is
separately demarcated and severable from the wakf
both the ‗old mosque‘ and the ‗new mosque‘ were portion ABGD and the shops to the west of the
waqf properties. The defendant mosque;

resisted these claims and argued that the ‗new …

mosque‘ was his own personal
73. … It is now admitted, and was so found in the
property. Justice Vivian Bose, speaking for a three 1880 litigation, that the old mosque was wakf
judge Bench of this Court, property. It can be assumed that the rest was not
wakf at that date and indeed that is also our
held:
conclusion on a review of the evidence. But much
has happened since the 1880 litigation and there

496
have been subsequent additions and accretions to ―(a) A declaration to the effect that the property
the original estate so that now the whole of those indicated by letters A B C D in the sketch map
additions and accretions form part and parcel of the attached to the plaint is public mosque commonly
original Waqf.‖ known as ‗Babari Masjid‘ and that the land
adjoining the mosque shown in the sketch map by
(Emphasis supplied) letters E F G H is a public Muslim graveyard as
specified in para 2 of the plaint may be decreed.
739. Our jurisprudence recognises the principle of
waqf by user even absent an (b) That in case in the opinion of the Court delivery
of possession is deemed to be the proper remedy, a
express deed of dedication or declaration. Whether
decree for delivery of possession of the mosque
or not properties are waqf
and graveyard in suit by removal of the idols and
property by long use is a matter of evidence. The other articles which the Hindus may have placed in
test is whether the property has the mosque as objects of their worship be passed in
plaintiff‘s favour, against the defendants.
been used for public religious worship by those Amendment/
professing the Islamic faith. The
Addition made as per Court‘s order dt. 25.5.95
evidentiary threshold is high, in most cases Sd./-
requiring evidence of public worship
(bb) That the statutory Receiver be commanded to
at the property in question since time immemorial. hand over the property in dispute described in
In Faqir Mohamad Shah, it Schedule ‗A‘ of the Plaint by removing the
unauthorized structures erected thereon.‖
was admitted that the old mosque was waqf
property. The court subsequently The claim of waqf by user raised in Suit 4 relates to
both the inner and the outer
examined the evidence on record to determine
whether the structures forming the courtyard. According to the plaintiffs the mosque
vests in the Almighty, Allah. It
‗new mosque‘ built on property adjoining the ‗old
mosque‘ had also been used for has been contended that by virtue of the long and
continuous use by the resident
public religious worship. It is on this basis that this
Court held portions of the ‗new Muslim community of the disputed site marked by
the letters A B C D, the
mosque‘, in conjunction with the ‗old mosque‘, to
be a composite waqf property. disputed site must be recognised as a waqf by user.

PART O PART O

851 852

Application to the present case 741. Dr Dhavan, learned Senior Counsel appearing
on behalf of the plaintiffs in
740. Having set out the legal principles on waqf by
user as recognised by our Suit 4, admitted that there is no evidence of
possession, use or offering of
courts, the next question is whether the principle is
attracted in the present case. worship in the mosque prior to 1856-7. No
evidence has been produced to
The contention urged on behalf of the plaintiffs in
Suit 4 must be read in establish worship at the mosque or possessory
control over the disputed property
conjunction with the relief prayed for in Suit 4. The
relief sought is:

497
marked by the letters A B C D over the period of 853
325 years between the alleged
nature of their use to offer worship. On gaining
date of construction in 1528 until the erection of entry, the Hindu devotees offered
railing by the colonial
worship at several structures such as the
government in 1857. Hence in the absence of Ramchabutra and Sita Rasoi. The
evidence on record, no conclusion
Bhandar was also under their control in the outer
can be drawn that prior to 1857, the disputed site courtyard. This indicated that
was used for worship by the
insofar as the outer courtyard was concerned, the
resident Muslim community. Following the events Hindu devotees were in settled
in 1856-57, the colonial
possession and actively practicing their faith. This
government erected the railing to bifurcate the possession of the Hindu
areas of worship into the inner
devotees over the outer courtyard was open and to
courtyard and the outer courtyard. Shortly the knowledge of the
thereafter, the Ramchabutra was
Muslims. Several incidents between 1857 and 1949
constructed in the outer courtyard. Worship at the have been adverted to in
Ramchabutra and at the pre
another part of the judgment which indicate that the
existing Sita Rasoi led to the worship of the Hindus possession of the inner
being institutionalised within
courtyard was a matter of serious contest. The
the property marked by the letters A B C D. Muslims did not have possession

742. The construction of the railing was not an over the outer courtyard. There is a lack of
attempt to settle proprietary adequate evidence to establish that

rights. It was an expedient measure to ensure law there was exclusive or unimpeded use of the inner
and order. Disputes between courtyard after 1858.

1858 and 1883 indicated that the attempt to exclude 743. The contention of the plaintiffs in Suit 4 is that
the Hindus from the inner the entire property of the

courtyard by raising a railing was a matter of mosque, including both the inner and outer
continuing dispute. Significantly, the courtyards is waqf property. Once a

activities of the Hindu devotees in the outer property is recognised as waqf, the property is
courtyard continued. An important permanently and irrevocably

indicator in this regard was the decision of the vested in the Almighty, Allah from the date the
colonial administration to allow the waqf is deemed to be in existence.

opening of an additional door to the outer courtyard The land is rendered inalienable and falls within
in 1877 to facilitate the entry the regulatory framework of waqf

of Hindu devotees against which objections were legislation and Islamic law. The doctrine of waqf
raised and rejected. The need by user is well established in

for an additional point of entry for Hindu devotees our law. However, as noted by the precedents
is an indicator of the extensive detailed above, it is a doctrine of

PART O

498
necessity to deal with cases where a property has did not lead to the extinguishing of competing and
been the site of long and legally tenable rights of

consistent religious use by members of the Islamic another religious community. In Miru v Ram
faith but the original Gopal,366 the Allahabad High Court

dedication is lost to the sands of time. Given the held that the public religious use of the zamindar‘s
radical alterations to the property extinguished the

characteristics of ownership of the property zamindar‘s secular title to the property. However,
consequent upon a recognition of a this decision was in the context

waqf by user, the evidentiary burden to prove a where there existed a katcha mosque on the land
waqf by user is high. The and the zamindar consented to

PART O the continued use of his land for Muslim prayers.

The High Court observed:
854
―The documentary evidence consisted of three
pleadings in the plaint in Suit 4 are deficient. No documents, firstly, there was a khasra Ex. A of the
particulars of the extent or nature year 1311 Fasli (1903-04). This khasra states that
plot No. 119 was entered as ―masjid‖… If the
of the use have been set out. A stray sentence in
zamindar had an objection to that entry he could
paragraph 2 of the plaint cannot
have made
sustain a case of waqf by user. Moreover, the
366 1935 AIR All 891
contention that the entire property
PART O
was a single composite waqf cannot be assessed in
a vacuum. The Court cannot 855

ignore the evidence of established religious an application to the court under section 111 of the
worship by Hindu devotees within the Land Revenue Act. The fact that he did not make
any objection to the entry shows that he acquiesced
premises of the disputed site. If the contention
in the entry.
urged by the plaintiffs in Suit 4 that
…
the entire disputed property is a waqf by user is
accepted, it would amount to It is not stated that the zamindar dedicated the
property for the mosque. It is stated that the
extinguishing all rights claimed by the Hindus in
zamindar allowed the defendants to dedicate the
the disputed property as a site of
building as a mosque by their user of the building
religious worship. for the purpose of a mosque with the consent,
express or implied, of the zamindar.‖
744. In the decisions adverted to above in which
claims of a waqf by user have (Emphasis supplied)

been recognised, the claims were not made in the In that case, the zamindar had acquiesced to the
context of another religious continued prayers by the

community also utilising the property for the Muslims at this property and the high evidentiary
conduct of religious worship. It flows threshold of continuous and

that the consequence of recognition of a waqf by longstanding religious worship was satisfied. The
user in the facts of these cases consent of the zamindar,

499
express or implied was a distinguishing factor. The dedication, is waqf by user. However, this may not
present case is materially be extended to the

different. There is no acquiescence by any of the extinguishment of competing and established

parties concerned. To the religious rights of another

contrary, the Hindu devotees of Lord Ram have community in the same property particular in the
consistently asserted their rights face of the evidence noted

to the disputed property. above. Accepting the contention urged on behalf of

the plaintiffs in Suit 4 would
745. The evidence adduced does not demonstrate
that the entire disputed have this effect and cannot be countenanced by
law.
property was utilised by the resident Muslim
community for public religious O.12 Possession and adverse possession

worship. It is evident that the outer courtyard was 746. The plaintiffs in Suit 4 plead adverse
in fact used by and was in the possession in the alternative. The

possession of the devotees of Lord Ram. These basis for claiming adverse possession has been set
portions of the property were up in paragraph 11(a) of the

admittedly not used for religious purposes by the plaint (as amended) which reads as follows:
members of the resident Muslim
―11(a). That assuming, though not admitting, that
community and cannot be waqf property by long at one time there existed a Hindu temple as alleged
use. Further, the consequences by the defendants representatives of the Hindus on
the site of which emperor Babar built the mosque,
that stem from recognising the entire disputed some 433 years ago, the Muslims, by virtue of their
property marked by the letters A B long exclusive and continuous possession
beginning from the time the mosque was built and
C D in the present case as waqf by user is a mirror
continuing right upto the time some mosque, some
image to the claim of the
mischievous persons entered the mosque and
plaintiffs in Suit 5 of recognising the land itself as a desecrated the mosque as alleged in the preceding
juristic person. The paragraphs of the plaint, the Muslims perfected
their title by adverse possessions and the right, title
consequence would be the destruction of the rights or interest of the temple and of the Hindu public if
of another community to offer any extinguished.‖

PART O PART O

856 857

worship by virtue of the internal tenets of a specific The pleadings in paragraph 11(a) are based on
religion which have been assumption: that in the event that

recognised for a specific purpose. The law there existed a Hindu temple, as alleged by the
recognises that where, since time defendants on the site of which

immemorial, worship has been offered at a land the mosque was constructed; the Muslims claim to
with a mosque, the land is have perfected their title by

presumed to have been dedicated for a religious adverse possession by long, exclusive and
purpose and even absent a continuous possession and that the

500
right, title and interest of the temple and of the plea of adverse possession, the character of the
Hindu public, if any, stands possession must be adequate in

extinguished. The plea of adverse possession is continuity and in the public because the possession
subsidiary to the main plea of has to be to the knowledge

the mosque being dedicated upon its construction of the true owner in order for it to be adverse.
by Babur for public worship by These requirements have to be

Muslims. duly established first by adequate pleadings and

second by leading sufficient
747. A plea of adverse possession is founded on the
acceptance that ownership evidence. Evidence, it is well settled, can only be
adduced with reference to
of the property vests in another against whom the
claimant asserts a possession matters which are pleaded in a civil suit and in the
absence of an adequate
adverse to the title of the other. Possession is
adverse in the sense that it is pleading, evidence by itself cannot supply the
deficiency of a pleaded case.
contrary to the acknowledged title in the other
person against whom it is claimed. Reading paragraph 11(a), it becomes evident that
beyond stating that the
Evidently, therefore, the plaintiffs in Suit 4 ought
to be cognisant of the fact that Muslims have been in long exclusive and
continuous possession beginning from
any claim of adverse possession against the Hindus
or the temple would amount the time when the Mosque was built and until it
was desecrated, no factual basis
to an acceptance of a title in the latter. Dr Dhavan
has submitted that this plea is has been furnished. This is not merely a matter of
details or evidence. A plea of
a subsidiary or alternate plea upon which it is not
necessary for the plaintiffs to adverse possession seeks to defeat the rights of the
true owner and the law is
stand in the event that their main plea on title is
held to be established on not readily accepting of such a case unless a clear
and cogent basis has been
evidence. It becomes then necessary to assess as to
whether the claim of made out in the pleadings and established in the
evidence.
adverse possession has been established.
749. Though, paragraph 11(a) dates the
748. A person who sets up a plea of adverse commencement of the possession of
possession must establish both
the Muslims from the date of the construction of
possession which is peaceful, open and continuous the mosque, it has emerged that
- possession which meets
no records are available with respect to possession
the requirement of being ‗nec vi nec claim and nec for the period between 1528
precario‘. To substantiate a
and 1860. Moreover, setting up the plea of adverse
PART O possession in the alternative

858 or as a subsidiary plea seems to be a distinct

improvement in the manner in

501
which the presentation of the plea has evolved. In above, Mr Jilani Senior Advocate has already
Suit 2 (which was withdrawn shown with reference to documents even without
the support of witness statements to establish that
subsequently), a written statement was filed by the the claim of adverse possession from 1939-49 is
first defendant who is also unfounded.‖

plaintiff no 10 in Suit 4. In the course of the written The above extract from the submissions in fact
statement, the first defendant seeks to emphasize that the

asserted that if at any time any plaintiffs to the suit principal claim of adverse possession in Suit 4 has
or any other Hindus prove that been made by the Hindu

PART O parties with special emphasis by the Nirmohi

Akhara and deities in Suit 5. What
859
the above submission misses is that the case of
prior to the construction of the Masjid there existed
adverse possession in Suit 4 has
any temple on the spot, even
been set up by the plaintiffs themselves, led by the
in that case the Muslims were in possession for
Sunni Central Waqf Board.
over 400 years, and their
PART O
possession was in the knowledge of the Hindus.
Consequently, there is no title in 860

the Hindus. Instead, the submission while addressing

arguments in Suit 4 has been inverted
750. Subsequently, by the time that Suit 4 was
instituted, the plea of adverse to appear as though it is a submission which is
being asserted only by Nirmohi
possession was relegated to a subsidiary
contention, the main contention being Akhara and the deities. Paragraph 11(a) which has
been extracted above is the
that there was a dedication to public worship upon
the construction of the pleading of the Sunni Central Waqf Board and the
other supporting plaintiffs
mosque by Babur. In fact, even during the course
of these proceedings, there which specifically seeks to set up a plea of adverse
possession.
has been a certain amount of ambivalence about the
manner in which the plea of 751. Any attempt to define possession must be
context specific. A uniform
adverse possession has been addressed in the
course of the proceedings. Dr formulation of principle of universal application is
elusive to the grasp. The
Rajeev Dhavan in the course of his written
arguments on adverse possession difficulty lies in converting myriad factual
situations, replete with their
has adduced the following submissions:
complexities, into a legal paradigm. The doctrine
―7.1 In suit 4 the principal claim of adverse
coalesces a fact – that of being
possession has been made by the Hindu parties
with special emphasis by the Nirmohi Akhara in possession – and an intent, the animus of being
(Plaintiff in Suit 3 and defendants in Suits 4 and 5) in possession.
and by the Plaintiffs in suit 5 to assert that no
adverse possession can be claimed against the 752. In Supdt. and Remembrance of Legal
Janma Bhumi (Plaintiff No. 2). 7.2 As mentioned Affairs, West Bengal v Anil

502
Kumar Bhunja367, Justice R S Sarkaria, speaking ―7…An adverse holding is an actual and
for a three judge Bench of this exclusive appropriation of land commenced and
continued under a claim of right, either under an
Court noted that the concept of possession is openly avowed claim, or under a constructive claim
―polymorphous‖ embodying both a (arising from the acts and circumstances attending
the appropriation), to hold the land against him
right (the right to enjoy) and a fact (the real
(sic) who was in possession. (Angell, Sections 390
intention). The learned judge held:
and 398). It is the intention to claim adversely
―13. ―It is impossible to work out a completely accompanied by such an invasion of the rights of
logical and precise definition of ―possession‖ the opposite party as gives him a cause of action
uniformly applicable to all situations in the which constitutes adverse possession.‖369
contexts of all statutes. Dias and Hughes in their
This Court held:
book on Jurisprudence say that if a topic ever
suffered from too much theorising it is that of ―7…Consonant with this principle the
―possession‖. Much of this difficulty and commencement of adverse possession, in favour of
confusion is (as pointed out in Salmond's a person implies that the person is in actual
Jurisprudence, 12th Edn., 1966) caused by the fact possession, at the time, with a notorious hostile
that possession is not purely a legal concept. claim of exclusive title, to repel which, the true
―Possession‖, implies a right and a fact; the right owner would then be in a position to maintain an
to enjoy annexed to the right of property and the action. It would follow that whatever may be the
fact of the real intention. It involves power of animus or intention of a person wanting to acquire
control and intent to control. (See Dias and title by adverse possession his adverse possession
Hughes, ibid.)‖ cannot commence until he obtains actual
possession with the requisite animus.‖
367 (1979) 4 SCC 274
368 1957 SCR 195 369
PART O
6th Edition, Vol. I, Lecture VI, at page 159
861
PART O
These observations were made in the context of
862
possession in Section 29(b) of
In Karnataka Board of Wakf v Government of
the Arms Act 1959.
India370, Justice S Rajendra
In P Lakshmi Reddy v L Lakshmi Reddy368,
Babu, speaking for a two judge Bench held that:
Justice Jagannadhadas, speaking
―11…Physical fact of exclusive possession and
for a three judge Bench of this Court dwelt on the
the animus possidendi to hold as owner in
―classical requirement‖ of
exclusion to the actual owner are the most
adverse possession: important factors that are to be accounted in cases
of this nature. Plea of adverse possession is not a
―4. Now, the ordinary classical requirement of pure question of law but a blended one of fact and
adverse possession is that it should be nec vi nec law. Therefore, a person who claims adverse
clam nec precario. (See Secretary of State for India possession should show: (a) on what date he came
v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). into possession, (b) what was the nature of his
The possession required must be adequate in possession, (c) whether the factum of possession
continuity, in publicity and in extent to show that it was known to the other party, (d) how long his
is possession adverse to the competitor.‖ possession has continued, and (e) his possession
was open and undisturbed.‖ (Emphasis
The court cited the following extract from U N supplied)
Mitra‘s ―Tagore Law Lectures on
The ingredients must be set up in the pleadings and
the Law of Limitation and Prescription‖: proved in evidence. There

503
can be no proof sans pleadings and pleadings possession.
without evidence will not establish
A suit was instituted by 18 plaintiffs including by
a case in law. the mosque itself suing through a

In Annakili v A Vedanayagam371, this Court next friend while the others claimed a right of
emphasized that mere possession worship. The suit was for a

of land would not ripen into a possessory title. The declaration against the Shiromani Gurdwara
possessor must have animus Prabandhak Committee that the

possidendi and hold the land adverse to the title of building was a mosque in which the followers of
the true owner. Moreover, he Islam had a right to worship. The

must continue in that capacity for the period suit was dismissed by the District Judge and his
prescribed under the Limitation Act. decision was affirmed in a split

753. In the decision of the Privy Council in Masjid verdict by a Full Bench of the High Court. Sir
Shahidganj v. Shiromani George Rankin speaking for the

Gurdwara Prabandhak Committee, Amritsar372, Privy Council held:

there was a structure of a
―It was for the Plaintiffs to establish the true
mosque in Lahore which had been built in 1722. position at the date of annexation. Since the Sikh
From 1762 or thereabouts the mahants had held possession for a very long time
under the Sikh state there is a heavy burden on the
building and adjacent land had been in the Plaintiffs to displace the presumption that the
occupation and possession of Sikhs. mahants' possession was in accordance with the
law of the time and place.‖
At the time of annexation by the British in 1849,
the mosque and the property Dealing with the argument that in the case of a
mosque, like a graveyard, the
370 (2004) 10 SCC 779
371 (2007) 14 SCC 308 372 AIR 1940 PC 116 waqf property is intended to be used in specie and
not to be let or cultivated, the
PART O
Privy Council held:
863
―…But the Limitation Act is not dealing with the
dedicated to it were in the possession of the Mahant
competence of alienations at Mahomedan law. It
of the Sikh Gurudwara and
provides a rule of procedure whereby British Indian
the building of the mosque had been used by the Courts do not enforce rights after a certain time,
custodians of the Sikh with the result that certain rights come to

institution. Under the Sikh Gurdwaras Act 1925, PART O

the old mosque building and
864
appurtenant adjacent land were included as
an end. It is impossible to read into the modern
belonging to the Gurudwara. The
Limitation Acts any exception for property made
Muslims initiated litigation before the Sikhs waqf for the purposes of a mosque whether the
Gurudwaras Tribunal in 1928 which purpose be merely to provide money for the upkeep
and conduct of a mosque or to provide a site and
resulted in a finding that their claim was defeated building for the purpose. While their Lordships
by reason of adverse have every sympathy with a religious sentiment
which would ascribe sanctity and inviolability to a

504
place of worship, they cannot under the Limitation possession does not arise in such a case. When the
Act accept the contentions that such a building plaintiff has established his title to a land, the
cannot be possessed adversely to the waqf, or that burden of proving that he has lost that title by
it is not so possessed so long as it is referred to as reason of the adverse possession of the defendant
―mosque,‖ or unless the building is razed to the lies upon the defendant. If the defendant fails to
ground or loses the appearance which reveals its prove that he has been in adverse possession for
original purpose.‖ (Emphasis supplied) more than 12 years, the plaintiff is entitled to
succeed simply on the strength of his title. A
754. In a judgment rendered in 2015, one of us person alleging that he has become owner of
(Justice Abdul Nazeer) as a immovable property by adverse possession must
establish that he was in possession of the property
Single Judge of the Karnataka High Court
peaceably, openly and in assertion of a title hostile
succinctly identified and laid down373
to the real owner. Stricter proof is required to
the pre-requisites of a claim to adverse possession establish acquisition of title by adverse possession
in the following terms: for the statutory period‖ (Emphasis supplied)

―27. The concept of adverse possession In Ravinder Kaur Grewal v Manjit Kaur374, a
contemplates a hostile possession i.e., a possession three judge Bench of this Court of
which is expressly or impliedly in denial of the title
which one of us, Justice Abdul Nazeer, was a part,
of the true owner. Possession to be adverse must be
further developed the law on
possession by a person, who does not acknowledge
others‘ rights but denies them. Possession implies adverse possession to hold that any person who has
dominion and control and the consciousness in the perfected their title by way
mind of the person having dominion over an object
that he has it and can exercise it. Mere possession of adverse possession, can file a suit for restoration
of the land would not ripen into possessory title. of possession in case of
Possessor must have animus possidendi and hold
the land adverse to the title of the true owner. dispossession. In this view, adverse possession is
Occupation only implies bare use of the land both a sword and a shield.
without any right to retain it. In order to constitute
755. The plaintiffs have failed to adopt a clear
adverse possession, there must be actual possession
stand evidently because they are
of a person claiming as of right by himself or by
persons deriving title from him. To prove title to conscious of the fact that in pleading adverse
the land by adverse possession, it is not sufficient possession, they must necessarily
to show that some acts of possession have been
done. The possession required must be adequate in carry the burden of acknowledging the title of the
continuity, in publicity and in extent to show that it person or the entity against
is adverse to the owner. In other words, the
possession must be actual, visible, exclusive, whom the plea of adverse possession has not been
hostile and continued during the time necessary to adequately set up in the
create a bar under the statute of limitation. 30. In a
pleadings and as noted above, has not been put-
suit falling under Article 65 of the Limitation Act,
forth with any certitude in the
plaintiff must establish his title to the property. He
need not prove that he was in possession within 12 course of the submissions. Above all, it is
years. If he fails to prove his title, the suits fails, impossible for the plaintiffs to set up a
and the question of adverse
373 Smt. Pilla Akkayyamma v Channappa ILR case of being in peaceful, open and continuous
2015 Kar 3841 possession of the entire property.

PART O Dr Dhavan repeatedly asserted that the Muslims

were obstructed in their offering
865

505
worship at the mosque as a result of the illegalities for the worship of the Muslim community.
of the Hindus. For this
Decisions on the doctrine
purposes, Dr Dhavan refers to the incidents which
took place in 1856-7, 1934 757. Under the doctrine of lost grant, a long-
continued use or possession can
374 (2019) 8 SCC 729
raise a legal presumption that the right exercised
PART O was previously conveyed to the

866 PART O

and 1949 – the last of them leading up to the 867

preliminary order under Section
user or possessor and that the instrument of
145. The events which are associated with each of conveyance has been lost.375
the above incidents constitute
According to Halsbury Laws of England –
indicators in the ultimate finding that in spite of the
existence of the structure of ―The courts first laid down the rule that from the
user of a lifetime the presumption arose that a
the mosque, possession as asserted by the Muslims similar use had existed from remote antiquity. As it
cannot be regarded as could not but happen that in many cases, such a
presumption was impossible, in order to support
meeting the threshold required for discharging the possession and enjoyment, which the law ought to
burden of a case of adverse have invested with the character of rights, recourse
was had to the theory of lost modern grants...‖376
possession. The evidence in the records indicate
that Hindus, post the setting up The doctrine only applies where the enjoyment or
use of land cannot otherwise
of the railing have, in any event, been in possession
of the outer courtyard. On be reasonably accounted for.377 In the absence of
an instrument of conveyance,
this basis alone, the plea of adverse possession set
up by the plaintiffs in respect enjoyment since the time of legal memory is to be
viewed as an indication that
of the entirety of the area represented by the letters
A B C D must fail. the right claimed had been conferred on the
claimant (or his predecessors) by a
For the reasons indicated above, the plaintiffs in
Suit 4 have failed to meet the grant.378 The grant maybe expressed or
presumed.379 The onus of proving
requirements of adverse possession.
continued and uninterrupted enjoyment of property
O.13 Doctrine of the lost grant
through long use is on the
756. During the course of arguments, Dr Rajeev
plaintiff. The court will not presume a lost grant in
Dhavan, learned Senior
cases where there was no
Counsel appearing on behalf of the Sunni Central
person who could ever have made such a grant, or
Waqf Board, urged that by
where there was no person or
virtue of the doctrine of lost grant, the plaintiffs in
persons competent to receive a particular grant.380
Suit 4 sought a declaration on
As there is a legal
the basis of a dedication of the mosque, upon its
presumption of a grant, the doctrine is not
construction by Babur in 1528
applicable unless throughout the

506
necessary period there existed some person or adopt, of securing, as far as possible, quiet
persons, alone or together, possession, to people who are in apparent lawful
holding of an estate, to assume that the grant was
capable of conveying the interest claimed to have lawfully and not unlawfully made.‖
been transferred by the lost
In the decision of the House of Lords in Harris and
grant.381 For valid application of the doctrine, the Earl of Chesterfield385, Lord
only conclusive evidence is that
Loreburn LJ held:
375Jerome J. Curtis, "
Reviving The Lost Grant" Real Property, Probate ―... But the principle is surely based upon good
And Trust Journal 23, No. 3 (1988) at pages 535- sense. The lapse of time gradually effaces records
60. 376 Halsbury Laws of England, Vol 14, of past transactions, and it would be intolerable if
Fourth Edition para 90 377 Halsbury Laws of any body of men should be dispossessed of
England, Vol 14, Fourth Edition, para 91 378 property which they and their predecessors have
Jerome J. Curtis, " Reviving The Lost Grant‖ Real enjoyed during all human memory, merely upon
Property, Probate And Trust Journal 23, No. 3 the ground that they cannot show how it was
(1988) at pages 535-60. 379 Jerome J. Curtis, originally acquired. That is the reason why the law
"Reviving The Lost Grant‖ Real Property, Probate infers that the original acquisition was lawful,
And Trust Journal 23, No. 3 (1988) at pages 535- unless the property claimed is such that no such
60. 380 Halsbury Laws of England, Vol 14, body of men could lawfully acquire it, or the facts
Fourth Edition, para 94 381 Halsbury Laws of show that it could not have been acquired in the
England, Vol 14, Fourth Edition, para 94 only ways which the law allows.‖

PART O 382Attorney General v

Horner (No.2) [1913] 2 Ch. 140 383 Halsbury
868 Laws of England, Vol 14, Fourth Edition, para 96

possession must be uninterrupted for a sufficient 384 ILR 19 Madras 485 385 [1911] A.C. 623
length of time. The doctrine of
PART O
lost grant is not based upon evidence of long use
but for default of evidence.382 A 869

person seeking to establish a claim to an easement In the above decision, the question before the court
under this doctrine should was whether a presumption

plead lost grant, but need not state in his pleadings of lost grant could be made by virtue of the
the date and names of the parishes exercising fishery rights

parties to the alleged modern grant.383 admittedly for several centuries over a river. The
House of Lords held by a
758. In a Privy Council decision in Chockalingam
Pillai v Mayandi Chettiar384, majority that no presumption of lost grant was
available in the case, inasmuch as
Lord Buckmaster explained the presumption of a
lawful origin in support of the free holders of several parishes who were an
indefinite and fluctuating body
proprietary rights long and quietly enjoyed in the
following terms: of persons could not be proper grantees in law.

―When every party to the original transaction has 759. The above decision was referred to in a
passed away and it becomes completely impossible decision of the Calcutta High
to ascertain what were the circumstances which
caused the original grant to be made, it is only Court in Asrabulla v Kiamatulla Haji
following the policy, which the courts always Chaudhury386, where the plaintiffs claimed

507
that since time immemorial the inhabitants of a properties in favour of the charity. The court found
village had been grazing their that the endowment was

cattle in a disputed land openly and without any founded by the Carnatic Rajas and not by the
interruptions and thereby, they ancestors of the appellants, who

had acquired a right of pasturage by virtue of the were mere managers or supervisors of the
doctrine of presumption of lost endowment. The properties and the

grant. Justice B K Mukherjea (as he then was), income therefrom were absolutely dedicated to the
speaking for the Division Bench temple, and mainly for the

held thus: purposes of the midnight services, and the

appellants had no beneficial interest in
―... in order that there may be a presumption of
lawful origin, it is necessary to establish that there any surplus income. Discussing the documentary
was no legal bar in the way of valid grant at its evidence for the purpose of
inception, and that not only there was a capable
grantor but there was a capable grantee also in determining the true nature of the endowment,
whose favour the grant could have been made. If Justice M R Jayakar held thus:
for any reason a valid grant could not have been
―As there was no deed or grant or any document
made no presumption of such a grant can arise.‖
throwing light on the nature or terms of the
760. The Privy Council in N Sankaranarayana endowment, the High Court, in their Lordships'
Pillayan v Board Of opinion, was justified in relying on other
documentary evidence for the purpose of
Commissioners For The Hindu Religious determining what the true nature of the
Endowments, Madras387, dealt with endowment. Such documentary evidence consisted,
inter alia, of inam-registers, title deeds, statements
a case where the parties claimed that they were the in survey and settlement registers, pattas and orders
owners of the suit properties, of various revenue authorities to their subordinates
in connection with the endowment in question.‖
comprising of both inam (rent free) and ryotwari or
ayan (assessed) lands, and ...
386 AIR 1937 Cal 245 387 AIR 1948 PC 25
In the present case no such arrangement is in
PART O evidence with which the possession or enjoyment
of the appellants' family could be said to have
870
commenced. The only arrangement mentioned is
that only a part of the income was subject to a the compromise between the members of the
charge for meeting the expenses family to which the endowment was not a party.‖

of the midnight kattalai according to a prescribed PART O

scale in the Sri
871
Papavinasaswami Temple at Papanasam in Madras.
The Privy Council referred to the decision in
The question before the
Chockalingam Pillai and discussed
court was whether the suit properties had been
the applicability of doctrine of lost grant in cases
wholly dedicated to the religious
involving absence of the
charity or whether there had been merely a charge
existence of actual evidence. It was held thus:
on the income of the
―... The other case relied on was Mahammad
Mazaffar-alMusavi v. Jabeda Khatun (AIR 1930

508
PC 103) where the rule was affirmed, relating to disputed property was the village cremation ground
the presumption of a lawful origin in support of was based on customary
proprietary rights long and quietly enjoyed, as it
was explained in an earlier case [Chockalingam practice attracting a legal custom. Hence the
Pillai v Mayandi Chettiar ILR 19 Madras 485] by doctrine of lost grant was held to
Lord Buckmaster…But it was explained in the
have no applicability. Explaining the applicability
same case that this rule is applicable where there is
of doctrine of lost grant, Lord
absence or failure of actual evidence. The
presumption, it was stated, of an origin in some Radcliffe held thus:
lawful title which the courts have so often readily
made in order to support possessory rights long and ―... It is essentially a suit to establish the rights of
quietly enjoyed, arises where no actual proof of the villagers in the disputed area. No one claimed
title is forthcoming, and the rule has to be resorted or spoke of the land as subject to the rights of the
to because of the failure of actual evidence. In the general public nor indeed would it be easy to give a
present case, where there is ample and convincing meaning to such a conception as applied to a
proof of the nature of the grant, the object of the cremation ground in a particular village. But
endowment and the capacity of the persons dedication is only known to English law as
claiming the user and enjoyment, the rule can something equivalent to an irrevocable licence
hardly have any application.‖ granted by the owner of soil to the use of the
public. Dedication of a piece of land to a limited
761. In a later decision of the Privy Council in section of the public, such as the inhabitants of a
Lakshmidhar Misra v village, is a claim unknown in law, and evidence
limited to such special user would not justify a
Rangalal388, the appellants in a representative
finding of dedication [see Poole v. Huskinson,
capacity on behalf of the villagers
Hildreth v. Adamson and Bermonds ey v. Brown.
claimed a parcel of land as a cremation ground Much the same result might well be achieved by
since time immemorial. The the creation of a charitable trust binding the land,
but that is not dedication, nor is it in question here.
respondent on the other hand claimed the land for At no stage of the hearing is there any record of a
the purpose of a private claim that the village community constitutes a
corporation administering a trust for some classes
industry. The Subordinate Judge in first appeal held of its inhabitants, nor was any such argument
that the reservation of land advanced before their Lordships. This doctrine
originated as a technical device to enable title to be
amounted to a dedication or a grant by the landlord.
made by prescription despite the impossibility of
The High Court in second
proving ―immemorial user.‖ By English common
appeal set aside the decision of the Subordinate law prescription had to run from time immemorial
Judge on the ground that there which, by convention, began in the year 1189. If it
was possible to demonstrate that the user in
existed no valid grant and dismissed the appellant‘s question, though ancient, originated since 1189 the
suit. In appeal, the Privy proof of title by the prescription of immemorial
user failed. To get round this difficulty judges
Council held that the issue of whether the land had allowed, or even encouraged, juries to find that the
been used as a cremation right in question, though less ancient than 1189,
originatel in a lost grant since that date. Thus the
ground was a mixed question of fact and law and
right acquired the necessary legal origin. But such a
the appellant‘s claim that the
right, just as much as an easement, had to be
388 AIR 1950 PC 56 attached to and to descend with an estate:
moreover, since it originated in grant, its owners,
PART O whether original or by devolution, had to be such
persons as were capable of being the recipients of a
872 grant under English law. A right exercisable by the

509
inhabitants of a village from time to time is neither ―12. ...We find it difficult to uphold the view of
attached to any estate in land nor is it such a right the High Court that the defendants were in
as is capable of being made the subject of a grant. possession of the disputed fishery under a lost
There are no admissible grantees. In fact, the grant. This doctrine has no application to the case
doctrine of lost grant has no application to such of inhabitants of particular localities seeking to
rights as those of the inhabitants of a particular establish rights of user to some piece of land or
locality to water. As pointed out by Lord Radcliffe in
Lakshmidhar Misra v. Rangalal [AIR 1950 PC 56]
PART O the doctrine of lost grant originated as a technical
device to enable title to be made by prescription
873
despite the impossibility of proving immemorial
continue an ancient and established user of some user and that since it originated in grant, its owners,
piece of land.‖ (Emphasis supplied) whether original or by devolution, had to be such
persons as were capable of being the recipients of a
762. In a three judge Bench decision of this Court grant, and that a right exercisable by the inhabitants
in Raja Braja Sundar Deb v of a village from time to time is neither attached to
any estate in land nor is it such a right as is capable
Moni Behara389, it was claimed that the principal of being made the subject of a grant, there being
defendants and their ancestors 389 AIR 1951 SC 247

had long remained in undisturbed actual physical PART O

possession of a fishery on a
874
fixed annual rental and had acquired this right in all
possible ways i.e. by grant, no admissible grantees. Reference in this
connection may be made to a Bench decision of the
custom, adverse possession and easement. A suit Calcutta High Court in Asrabulla v. Kiamatulla
for injunction was brought by [AIR 1937 Cal 245] wherein the law on this subject
has been examined in some detail. In that case the
the plaintiff on behalf other fishermen residing in
question arose whether the right of pasturage
nine villages on the ground that
claimed by a whole body of villagers could be
being the proprietors of the fishery, they were the acquired by grant, express or presumed. After an
exclusive owners of the fishery examination of a number of English and Indian
cases it was held that no lost grant could be
and the defendants were interfering with the presumed in favour of a fluctuating and
plaintiff‘s right of enjoyment and unascertained body of persons who constitute the
inhabitants of a village and that such a right could
causing losses. The Trial Court passed a decree in only be acquired by custom. The defendants in this
favour of the plaintiff which case are a fluctuating body of persons and their
number increases or decreases by each birth or
was later modified in appeal by the High Court,
death or by influx or efflux of fishermen to or from
where it was held that the
these villages...‖ (Emphasis supplied)
defendants by virtue of lost grant had exclusive
763. According to ―Halsbury Laws of England‖:
rights as tenants to fish in the
―The presumption can only be rebutted by
fishery only during the Hilsa season. Reversing the
evidence that the existence of such a grant is
decision of the High Court
impossible; nothing short of such evidence will
Justice Meher Chand Mahajan (as he then was), suffice and a judge is not entitled to refuse to
speaking for the Bench held presume a grant merely because he is convinced
that it was never in fact granted.‖390
thus:
A two judge Bench of this Court in Buddu
Satyanarayana v Konduru

510
Venkatapayya391, dealt with an appeal arising out the persons to whom it was made. It is true that the
of a suit for recovery of original grant is not forthcoming but turning to the
evidence we find two documents which appear to
possession of certain immovable properties. A suit us to be decisive on the question of title... It will be
was instituted by the noticed that neither in the Inam Register Ex. P-3
nor in the statement Ex. D-3 is there any mention
Executive Officer appointed by government for
of the Archakas as the grantee or for the matter of
ejectment of the defendants on
that, having any the least interest, personal or
the allegation that the properties belonged to the otherwise, in the subject-matter of the Inam grant.
temple, having been given to it The two exhibits quite clearly indicate that the
Inam grant was made in favour of the temple by the
by a zamindar in 1770 AD. It was contended that grantor and that in the face of this definite evidence
the defendants were in and proof of the nature of the grant, no
presumption of a lost grant can be made in favour
possession by virtue of being the Archakas and of the Archakas. We, therefore, in agreement with
were wrongfully claiming the the High Court, hold that the deity was the grantee
and the first question raised before us must be
properties as their own. The suit was instituted
answered against the appellants.‖
giving notice to the defendants to
[See also C Periaswami Goundar v Sundaraesa
make over possession of the suit properties to the
Ayyar392]
plaintiff as the Executive
764. A Constitution Bench of this Court in
Officer of the temple. The High Court upheld the
Monohar Das Mohanta v Charu
order of the Subordinate Judge
390 Halsbury Laws of England, Vol 14, Fourth Chandra Pal393, had to deal with a suit for
Edition, para 90 391 AIR 1953 SC 195 recovery of possession of various plots

PART O of land filed by the appellant, a Mahant of a

religious institution against the
875
defendants. In the alternate, the appellant sought
decreeing the plaintiff‘s suit. On behalf of the
for assessment of fair and
defendants, it was argued before
equitable rent. The respondents contested the suits,
this Court that, by virtue of the defendants and their
and pleaded that the 392
predecessors being in
AIR 1965 SC 516 393 AIR 1955 SC 228
possession of the properties from ancient times, a
PART O
valid presumption of some
876
lawful title should arise by virtue of doctrine of lost
grant. Justice S R Das disputed lands did not form part of the zamindari
but a grant had been made in
speaking for the Bench rejected the contention and
held thus: favour of their predecessors-in-title long prior to
the permanent settlement and
―2. ... There is no doubt, on the authorities, that a
presumption of an origin in some lawful title may that neither the Maharaja of Burdwan nor the
in certain circumstances be made to support plaintiff claiming under him had any
possessory rights long and quietly enjoyed where
no actual proof of title is forthcoming but it is title to them. The District Court upheld the decision
equally well established that that presumption of the Munsif and held that
cannot be made where there is sufficient evidence
and convincing proof of the nature of the grant and

511
the defendants and the predecessors had been in PART O
possession for a very long time
877
without payment of rent and a presumption of lost
grant could be made in their such a grant, as where the right is claimed by a
fluctuating body of persons. That was held in Raja
favour. The High Court dismissed the appeal Braja Sundar Deb v. Moni Behara [1951 SCR 431,
against the decision of the District 446] . There will likewise be no scope for this
presumption, if there is no person capable of
Court. The issue before this Court was whether on making a grant: (Vide Halsbury's Laws of England,
the materials on record the Vol. IV, p. 574, para 1074); or if the grant would
have been illegal and beyond the powers of the
courts below were right in presuming a lost grant in
grantor. (Vide Barker v. Richardson [4 B & Ald
favour of the defendants. This
579: 106 ER 1048 at 1049] and Rochdale Canal
Court held that no presumption of a lost grant could Company v. Radcliffe [18 QB 287: 118 ER 108 at
be made in favour of the 118] ).‖

defendants, and that the plaintiff was entitled to 765. In Konda Lakshmana Bapuji v Government of
assessment of fair and equitable A P394, the respondent

rent on the holdings in their possession. Speaking claimed that the land in dispute was shown as
for the Bench, Justice T L Maqta land and later as Inam land.

Venkatarama Ayyar, explained the applicability of The appellant claimed to be an assessee of one of
the doctrine of lost grant in the the successors to the said

following terms: Maqta and he had occupied the land in 1958 and
constructed a building upon it. It
―7. The circumstances and conditions under
which a presumption of lost grant could be made was argued that the principle of lost grant would
are well settled. When a person was found in apply as the appellant has been
possession and enjoyment of land for a
in possession of the land in dispute for a
considerable period of time under an assertion of
considerable length of time under an
title without challenge, Courts in England were
inclined to ascribe a legal origin to such possession, assertion of title. It was alleged by the respondent
and when on the facts a title by prescription could that the claim of the appellant
not be sustained, it was held that a presumption
could be made that the possession was referable to was not lawful because the land never belonged to
a grant by the owner entitled to the land, but that the said Maqta; even
such grant had been lost. It was a presumption
made for securing ancient and continued otherwise it vested in the Government with effect
possession, which could not otherwise be from the said date and the order
reasonably accounted for. But it was not a
of the Collector, correcting entries in the record of
presumptio juris et de jure, and the Courts were not
rights, had become final. A two
bound to raise it, if the facts in evidence went
against it. ―It cannot be the duty of a Judge to judge Bench of this Court, while rejecting the claim
presume a grant of the non-existence of which he is of doctrine of lost grant,
convinced‖ observed Farwell, J. in AttorneyGeneral
v. Simpson [(1901) 2 Ch D 671, 698] . So also the referred to the decision of Monohar Das Mohanta
presumption was not made if there was any legal and held that a presumption
impediment to the making of it. Thus, it has been
held that it could not be made, if there was no of lost grant will not be available to the appellant
person competent to be the recipient of who traced his possession from

512
1954 under an unregistered perpetual lease from open, as of right and without interruption but grant
the erstwhile Inamdar will not be inferred if the user can be explained
otherwise. The fiction of a ―lost grant‖ is a mere
(Maqtedar). presumption from long possession and exercise of
user by easement with acquiescence of the owner,
394 (2002) 3 SCC 258
that there must have been originally a grant to the
PART O claimant, which had been ―lost‖. There can be no
such presumption of a ―lost grant‖ in favour of a
878 person who constitutes trustees in succession. We
do not think that, with the material on record, any
766. A two judge Bench of this Court in Braja such interference (sic inference) is possible. Firstly,
Kishore Jagdev v Lingraj the contention had been advanced before the courts
that the deity is a private trust and not covered by
Samantaray395, dealt with the respondent‘s claim
the enactment; having failed in that regard now
to be a hereditary trustee of a
they want to hang on to the fact that they are
public religious institution based on the contention hereditary trustees. In establishing the same they
that his ancestors had been have miserably failed by not producing evidence of
any kind...‖
entrusted with the management of affairs of the
religious institution which had 395 (2000) 6 SCC 540

been established long ago by an unknown founder. PART O

It was contended by the
879
respondent that their family had been performing
767. From the analysis of the precedent on the
seva and puja without any
subject, the following principles
interruption whatsoever as marfatdars and the
can be culled out:
office of marfatdar was hereditary
(i) The doctrine of lost grant supplies a rule of
and regulated by custom. The appellants contested
evidence. The doctrine is
the claim of the respondent
applicable in the absence of evidence, due to a
and the Assistant Commissioner rejected the claim
lapse of time, to prove the
of the respondent. However,
existence of a valid grant issued in antiquity.
the High Court in appeal allowed the respondent‘s
However, the court is not
claim and held him to be a
bound to raise the presumption where there is
hereditary trustee based on the doctrine of lost
sufficient and convincing
grant. Justice S Rajendra Babu
evidence to prove possession or a claim to a land in
while setting aside the High Court‘s decision held
which case the
thus:
doctrine of lost grant will have no applicability;
―6. The other basis upon which the High Court
passed its judgment is that the requirements of law (ii) Where it is impossible for the court to
that they are hereditary trustees ―since the time of determine the circumstances under
founder‖ occurring in the definition of ―hereditary
trustee‖ is lost in antiquity and therefore it is not which the grant was made, an assumption is made
possible to have any direct evidence to establish the about the existence of
line of succession but could be derived in the
doctrine of ―lost grant‖. It is open to the court to a valid and positive grant by the servient owner to
infer grant from immemorial use when such user is the possessor or user.

513
The grant maybe express or presumed. Once the possession, if it is established that the mosque was
assumption is made, the constructed on the site of a

court shall, as far as possible, secure the possession Hindu temple. There is no pleading by the plaintiffs
of those who have to support the application of

been in quiet possession; the doctrine of lost grant. The specific case of the
plaintiffs is that of a dedication
(iii) For a lawful presumption there must be no
legal impediments. For the of the mosque for public worship by Muslims. This
must be evaluated on the
applicability of the doctrine it is necessary to
establish that at the inception basis of the evidence which has been adduced. In
fact, the alternate plea of
when the grant was made not only was there a valid
grant but also capable adverse possession is destructive of a valid legal
basis to apply the doctrine of
grantees in whose favour the grant could have been
made. In the absence lost grant as a rule of evidence. Adverse possession
postulates the vesting of title
of defined grantees, there will be no presumption of
lost grant; in one person and the existence of a long continued
and uninterrupted
(iv) For the applicability of the doctrine of lost
grant, there must be long, possession of another, to the knowledge of and in a
manner hostile to, the true
uninterrupted and peaceful enjoyment of an
incorporeal right. title holder. The plea of adverse possession would
lead to an inference against
Uninterrupted enjoyment includes continuous use
or possession. The the application of the doctrine of lost grant as a
plea of adverse possession is
PART O
premised in title vesting in someone other than the
880 alleged grantee. The

requisite period of use and possession is variable decisions of this Court and those of the Privy
and to be determined Council recognising the doctrine as

from case to case; and a rule of evidence show that the principle must be
applied with caution. The
(v) A distinction has to be made between an
assertion of rights due to a PART O

prolonged custom and usage and that by doctrine of 881

lost grant.
doctrine does not constitute an independent,
Analysis substantive head for the recognition

768. In the present case, the plaintiffs in Suit 4 of titles but is a rule of evidence. Section 110 of the
have set up a claim of Evidence Act 1872 speaks of

declaration on the basis of a dedication of the the burden of proof as to ownership : when a
mosque constructed by Babur in question arises as to whether a

1528 for the worship of the Muslim community person in possession of anything is the owner of
and, in the alternate, on adverse such thing, the burden of

514
proving that he is not the owner is cast on the Vazoo, the stone inscription with ‗Allah‘, the
person who avers that he is not the mimbar and the mehrab. These

owner. In the process of applying the doctrine of features indicate that the disputed premise was
lost grant as a rule of evidence, constructed as a mosque. Within

the court must be circumspect about not travelling the premises of the same complex there existed two
beyond the limits set for it by religious faiths. Their co

the legislature. existence was at times, especially before 1856,

accepting and at others,
In the present case, absent any pleadings and of
evidence on the basis of which antagonistic and a cause of bloodshed. Yet, the
distinctive features of the site,
a presumption could be raised of the application of
the doctrine, it must embodying both Hindu and Islamic traditions led to
the creation of a space with
necessarily follow that the doctrine of lost grant has
no application. an identity of its own. The real significance
attached to the composite structure is
O.14 The smokescreen of the disputed premises –
the wall of 1858 evidenced by the nature and the length of use by
both of the parties.
769. The disputed site has witnessed a medley of
faiths and the co-existence of 770. The accounts from travellers (chiefly
Tieffenthaler and Montgomery
Hindu and Muslim practices, beliefs and customs.
A blend of Hindu and Muslim Martin) corroborated by both Hindu and Muslim
witnesses indicate identifiable
elements emerges from the religious and
architectural tradition associated with places of offering worship and the prevalence of
worship by Hindu pilgrims at the
the erstwhile structure which embodied features
both of a temple and a mosque. disputed site. The setting up of a railing in 1858 by
the British around the
While, the distinctive architectural elements
overlapped they were yet easily disputed structure of the mosque took place in the
backdrop of a contestation
recognisable. They were symbols of a syncretic
culture. Specific sculptured finds over the claim of the Hindus to worship inside the
precincts of the mosque. One
such as the black Kasauti stone pillars along with
the presence of the figurines of of the earliest instances evidencing namaz being
carried out at the disputed site
Varah, Garud, Jai and Vijay suggest that they were
primarily meant for decoration is documented in an application dated 5 November
1860, filed by one Rajab Ali
of a Hindu temple facade and served as deities to
be worshipped. At the same for removal of the construction of the Hindu
Chabutra. The application indicated
time, the distinctive appearance of a mosque
emerged from the three domes, the that the Azaan of the Moazzin was met with the
blowing of conch shells by the
PART O
Hindus. The railing which comprised of a brick
882 grill-wall was neither a sub-division

515
of the disputed site, which was one composite primarily shows that the disputed site witnessed use
property, or a determination of title by worshippers of both the

by the colonial administration. This is evident from faiths. Obstructing Muslims from accessing the
- (i) the immediate setting up mosque did not mean that they

of the Ramchabutra by the Hindus right outside had had no claim to or had abandoned the disputed
three domed structure upon the site. However, it needs to be

setting up of the railing; (ii) the continued assertion remembered that the present case relates to title or
of rights to the inner courtyard ownership of this composite

PART O place of worship. In the absence of historical

records with respect to ownership or
883
title, the court has to determine the nature and use
by Hindus; and (iii) offering of worship by of the disputed premises as a
devotees towards the ‗Garbh Grih‘
whole by either of the parties. In determining the
standing outside the railing. The construction of nature of use, the court has to
Ramchabutra and the worship
factor in the length and extent of use.
offered there was an event which coincided with
the setting up of the railing. The PART O

railing was an effort to maintain peace at the site. 884

However, peace remained
772. In assessing the title of the Muslims, the
elusive. physical structure of the mosque

771. The oral witness accounts of the Hindus is one fact to be taken into consideration. But a
show their faith and belief that the claim to possessory title has to be

‗Garbh-Grih‘ was the birth-place of Lord Ram and based on exclusive and unimpeded possession
the existence of long continued which has to be established by

worship by the Hindus at the disputed site. As evidence. As shown above, the disputed premises
regards namaz within the disputed are characterised by distinct

site, the evidence on record of the Muslim architectural characteristics of Hindu and Islamic
witnesses, indicates that post 1934 cultures. The claim to title will

namaz was being offered until 16 December 1949. have to be judged from the perspective of long and
However, the extent of namaz continued possession. It

would appear to have been confined to Friday becomes relevant to note the extent to which the
namaz particularly in the period Muslims have asserted their

preceding the events of December 1949. Both claim to the entirety of the property, which forms a
Hindu and Muslim witnesses state composite whole, comprised

that active measures were being taken by the of the inner and outer courtyards in comparison
Sadhus and Bairagis to prevent the with the contesting claims of the

Muslims from approaching the disputed premises Hindus. In relation to the outer courtyard, both
and from offering prayers. This Hindu and Muslim witnesses have

516
admitted the presence of the Ramchabutra and neem tree clearly indicated their exclusive and
other places of religious unimpeded possession of the

significance which were being continuously outer courtyard. All the evidence indicates that a
worshipped by the Hindus. The reasonable inference based on

access of Hindus to and their possession of the a preponderance of probabilities can be made that
outer courtyard was unimpeded. there was continuum of faith

773. Despite the setting up of the grill-brick wall in and belief of the Hindus that the ‗Garbh-Grih‘ was
1857, the Hindus never the place of birth of Lord Ram

accepted the division of the inner and the outer both prior to and after the construction of the wall.
courtyard. For the Hindus, the The use of the area within the

entire complex as a whole was of religious railing by the Muslims was contentious and their
significance. A demarcation by the access to the inner courtyard

British for the purposes of maintaining law and was landlocked; the only access being through the
order did not obliterate their belief two gates to the outer portion

in the relevance of the ‗Garbh-Grih‘ being the and the area which were in the control of the
birth-place of Lord Ram. This is Hindus.

evident from the witness testimonies which O.15 Analysis of evidence in Suit 4
indicate that pilgrims offered prayer
774. The case of the plaintiffs in Suit 4 is that upon
standing at the railing by looking towards the its construction at the behest
sanctum sanctorum. Another
of Babur in 1528, there was a dedication of the
relevant piece of evidence is the admission of the mosque for the purpose of
Moazzin of the Babri Mosque
worship by Muslims. With respect to title, no
in his complaint dated 30 November 1858 against documentary evidence exists or has
Nihang Singh. The Moazzin
been adduced for the period prior to 1860. Before
admitted that previously the symbol of Janamsthan the High Court, as noticed
had been there for hundreds
earlier submissions proceeded on the basis that
PART O there was no evidence either in

885 regard to possession or the offering of namaz prior

to 1860 or at any rate before
of years and Hindus did puja inside the three
domed structure. Absent any 1856-7. The evidence which has been adduced,
must be analysed bearing in
division of the site, the Hindus had multiple points
and forms of worship within PART O

the disputed premises which included the 886

Ramchabutra and Sita Rasoi and the
mind the fundamental principle of law that revenue
parikrama of the disputed premises. Even after the records do not confer title. In
railing was set up, Hindu
Jattu Ram v Hakam Singh396, a two judge Bench
worship at Ramchabutra, Sita Rasoi and of the held:
idols placed below the fig and

517
―3…The sole entry on which the appellate court PART O
placed implicit reliance is by the Patwari in
Jamabandi. It is settled law that the Jamabandi 887
entries are only for fiscal purpose and they create
the masjid is kept up and the Mohammedans
no title.‖
conduct themselves properly.‖ This
This decision was followed in Suraj Bhan v
document even if it is accepted as authentic
Financial Commissioner397, where
indicates a grant for specific
Justice C K Thakker speaking for a two judge
purposes and does not confer the title to the
Bench held:
disputed land. The register of
―9…It is well settled that an entry in revenue
enquiry dated 14 March 1860 contains certain
records does not confer title on a person whose
details of a rent-free grant and is
name appears in record-ofrights. It is settled law
that entries in the revenue records or jamabandi stated to be ―based on testimonies‖. However, it
have only ―fiscal purpose‖ i.e. payment of land shows that ―the year and date
revenue, and no ownership is conferred on the basis
of such entries. So far as title to the property is are not known‖. As regards the date of the grant, it
concerned, it can only be decided by a competent has been stated to be of ―no
civil court (vide Jattu Ram v. Hakam Singh [(1993)
4 SCC 403 : AIR 1994 SC 1653]).‖ knowledge‖. There is a reference in the register to
an enquiry into the rent-free
775. No documentary evidence has been brought
on the record indicating the land (which) began in the year 1264 Fasli when
riots broke out. The reference to
conferment of title in a form of the grant of the land
underlying the mosque. The 1264 Fasli corresponds to 1856-7 A.D. While the
name of the donor is stated to
documentary evidence on which reliance has been
placed essentially consists of be Babur, this account is based on testimony.
Register no. 6(e) – conditional
grants which were made by the British Government
for the upkeep and exemption dated 29 June 1860-only indicates the
names of individuals who were
maintenance of the mosque. These grants are stated
to be in continuation of holding the rent-free lands.

those which have been made previously prior to the 776. The next stage in the documentary evidence
annexation of Oudh by the relates to the conversion of

colonial government. The register Mafiat which the cash grant into the grant of revenue free land.
bears government orders dated As noted earlier, there is a

13 March 1860 and 29 June 1860 has been noticed serious problem in regard to the lineage and this
in the judgment of Justice Court cannot proceed on the

Sudhir Agarwal as a document which is torn and basis of a claim made in the fourth generation with
the contents of which were not an unexplained break in the

legible. The grant for the upkeep and maintenance intervening period of nearly 325 years. There is
of the mosque was ―so long nothing to indicate that there was

396 (1993) 4 SCC 403 any investigation into the correctness of the claim.
397 (2007) 6 SCC 186 Eventually, the cash payment

518
of Rs. 302.3.6 was commuted by the grant of lands Ram. The setting up of the Chabutra is proximate
in two villages in lieu of the both in terms of distance and

erstwhile payment. This is evidenced by the letter time. In terms of time, the establishment of the
dated 25 August 1863 of the Chabutra is an event which was

Chief Commissioner Oudh to the Commissioner an immediate consequence of the setting up of the
Faizabad Division and the order railing to bifurcate a

dated 31 August 1863 of the Deputy contiguous and consolidated area into the inner
Commissioner. The grant of 1870 states that courtyard and outer courtyard.

the cash nankar was being maintained so long as Prior to the railing being erected there was no
the assignee surrenders all the restriction on access for the Hindus

PART O to offer worship inside the domed structure. The

documentary evidence also
888
shows that the setting up of the railing did not as a
previous sanads, titled deeds, and other documents matter of fact result in an
relevant to the grant in
absolute division of the inner and outer courtyards
question. as separate and identified

The Nakal Khasra Abadi of 1931 indicates that places of worship for the two communities. Soon
Arazi number 583 is Nazul land. after the incident of November

While it makes a reference to the Masjid Pokhta 1858 in which the Nihang Singh is alleged to have
Waqf Ahde Shahi, it also adverts organised a hawan puja and to

to the Chabutra which is prominently known as the PART O

Janmabhumi.
889
777. The documentary evidence indicates that the
riots of 1856-7 led to the have erected a symbol of ―Sri Bhagwan‖ within
the premises of the mosque is the
colonial government erecting a wall with railings to
bifurcate the areas of worship: commencement of a series of episodes indicating
that the exclusion of the
the Muslims within the inner courtyard and the
Hindus in the outer courtyard. Hindus from the inner courtyard was neither
accepted nor enforced as a matter of
Evidently, prior to the setting up of the railing,
there was no such clear-cut ground reality. Resistance was met to the removal
of the Nihang Singh.
demarcation and the Hindus and Muslims had
offered worship within the Eventually, in December 1858 it was recorded that
the flag had been uprooted
structure. The setting up and offering worship at
the the Chabutra immediately from the masjid and the Nihang Singh had been
ousted. Within a short span of
outside the railing and in close proximity to it is an
indicator that the Hindus time in November 1860 came a complaint of Mir
Rajjab Ali complaining of a new
asserted their right to worship at what they believed
is the birth-place of Lord chabutra being constructed in the graveyard. The
complaint recorded that when

519
Azaan is called by a Moazzin, the Hindus begin to dispute in regard to the placing of an idol on the
blow conch shells. The area chabutra.

was thus rife with contesting claims over religious 779. In April 1877, the grant of permission by the
worship. Consistent with those Deputy Commissioner for the

claims, the record of contemporary date does not construction of a new gate on the northern side (in
indicate the total exclusion of addition to the pre-existing

the Hindus from the inner courtyard despite the gate on the eastern side) again led to a dispute. The
construction of the railing. In creation of an additional

March 1861, Mohd Asghar and Rajjab Ali joined in entry was justified by the Deputy Commissioner to
complaining against the safeguard human safety since

erection of a chabutra without permission near it appears that there was a rush of devotees. The
Babri Masjid. This led to the complaint of the Muslims was

Subedar tendering the report of the eviction of the dismissed and the opening of an additional door on
individual who have done so. the northern side was

Again in 1866, there was a complaint by the justified as being in the interest of public safety.
Mutawalli seeking the demolition of a
780. When in November 1883, the Mutawalli
new Kothari which was constructed for placing asserted the right to have the wall
idols inside the door of the Masjid
of the mosque painted, the Assistant
where Bairagis had constructed a chabutra. On this Commissioner, while restricting Raghubar
application, the Deputy
Das from carrying out repairs in the inner and outer
Commissioner passed an order in October 1866 for part of the compound
its consignment to the
directed the Mutawalli not to lock the outer door of
records. the mosque on the ground that

778. In 1868, the Muslims alleged encroachment the old existing orders must be complied with. The
on the north western corner of course of the disputes

the Masjid which was held not to have been between 1858 and 1883 thus indicates that the
proved. In 1870, the Mutawalli setting up of the railing as a

sought an order of eviction against a Faqir from the measure of allowing Muslim worship inside to the
graveyard and complained of railing and exclusion of Hindus

PART O from worshipping in the inner courtyard was a

matter of continuing dispute. The
890
Muslims on their part had complained of the setting
certain encroachments around the trees. An order up of the chabutra. However,
was passed thereon in August
the activities of the Hindus in the outer courtyard
1871, stating that the plaintiff had no right of continued and an important
ownership over the graveyard in the
indicator of the presence of Hindu devotees in large
courtyard in front of the door of the Masjid. In number was the opening of
1873, there appears to have been a

520
an additional door in 1877. As regards the inner (ii) The conflagration of 1856-7 led to the setting
courtyard, it is evident this was a up of the railing to provide a

PART O bifurcation of the places of worship between the

two communities;
891
(iii) The immediate consequence of the setting up
matter of contestation between Hindus and of the railing was the
Muslims, the Muslims asserting it to
continued assertion of the right to worship by the
be a place of worship and the Hindus periodically Hindus who set up the
contesting it by seeking entry
Chabutra in the immediate proximity of the railing;
as they had obtained prior to the setting up of the
railing. The riot of 1934 resulted PART O

in a considerable damage being caused to the 892

domes of the mosque and led to
(iv) Despite the existence of the railing, the
the imposition of fines on the Hindus and Bairagis. exclusion of the Hindus from the
The work of restoration was
inner courtyard was a matter of contestation and at
carried out at the cost of the British Government by the very least was not
a Muslim contractor. This
absolute;
coupled with the documentary evidence pertaining
to the arrears of salary of the (v) As regards the outer courtyard it became the
focal point of Hindu worship
Pesh Imam would indicate that post 1934 there was
no abandonment by the both on the Ramchabutra as well as other religious
structures within the
Muslims of the mosque as a place for offering
namaz. This would have continued outer courtyard including Sita Rasoi. Though, the
Hindus continued to
until 1949 though, as the Waqf Inspector notes in
his report dated 12 December worship at the Ramchabutra which was in the outer
courtyard, by the
1949, Muslims who went to pray in the mosque
were being harassed by the consistent pattern of their worship including the
making of offerings to the
Hindus in the outer courtyard where many of them
resided. Eventually, the events ‗Garbh Grih‘ while standing at the railing, there
can be no manner of doubt
immediately preceding the intervening night of
22/23 December 1949 led to the that this was in furtherance of their belief that the
birth-place of Lord Ram
placement of the idols on the pulpit below the
central dome of the mosque. was within the precincts of and under the central
dome of the mosque; and
781. From the documentary evidence, it emerges
that: (vi) The riots of 1934 and the events which led up
to 22/23 December 1949
(i) Prior to 1856-7 there was no exclusion of the
Hindus from worshipping indicate that possession over the inner courtyard
was a matter of serious
within the precincts of the inner courtyard;

521
contestation often leading to violence by both for failing to plead whether there was an earlier
parties and the Muslims did idgah or kanati masjid

not have exclusive possession over the inner below the structure of the mosque since:
courtyard. From the above
(a) Such an enquiry could not have been conducted
documentary evidence, it cannot be said that the by Babur before
Muslims have been able
having the mosque constructed; and
to establish their possessory title to the disputed
site as a composite (b) The High Court directed the ASI to conduct an
investigation only
whole.
because the material which emerged from the
O.16 The Muslim claim to possessory title gazetteers and

782. Dr Rajeev Dhavan, learned Senior Counsel historical accounts was inconclusive.
appearing on behalf of the
Buttressing the submissions on the law pertaining
plaintiffs in Suit 4, urged submissions on the effect to title, Dr Dhavan commended
of the existence and
following propositions for acceptance by the court:
destruction of a temple on the title asserted by the
Sunni Central Waqf Board. (i) Possession creates a presumption of title,
particularly if there is no better
The submissions of Dr Dhavan have been
formulated thus: title or any other claim is barred by limitation;

PART O (ii) Where a person has possession with title, this

will continue with use or the
893
inability to use;
(i) The existence of a temple below the mosque
pertaining to an earlier time (iii) In certain circumstances, possession may be
sufficient to decide title;
period is irrelevant to the question of title;
PART O
(ii) The ASI report, in any event is inconclusive on
the question whether: 894

(a) an earlier structure existed at the site and was (iv) The burden of proof is upon the person who
demolished for the asserts possession without

construction of a mosque; and title, particularly having regard to the provisions of

Section 110 of the
(b) whether or not that structure is a temple.
Evidence Act;
(iii) The High Court has also accepted that the ASI
report had not furnished a (v) If a person concedes or acts in a manner that
indicates a lack of
categorical finding on whether the mosque was
constructed by demolition possession and performs of an act or makes an
omission, this will amount
of a pre-existing structure;
to estoppel under Section 115 of the Evidence Act;
(iv) No adverse inference could have been drawn
against the Muslim parties (vi) Possession is sustained by animus possidendi;
and

522
(vii) The absence of a prayer or lesser prayer would (v) Muslims continuously offered prayers in the
not result in a loss of title disputed structure, as is

and title can be lost only on adverse possession evident from:

beyond limitation;
(a) The agreement dated 25 July 1936 for payment
In sum and substance, the basis of the claim of title, of arrears and
as alleged before this Court
salary of the Pesh Imam;
by Dr Dhavan can be formulated thus:
(b) Testimonies of witnesses recorded in the
(i) Babri masjid was constructed in 1528 under the Shia/Sunni suit of 1941;
command of Babur. The
and
maintenance and upkeep of the mosque was
realised by a cash grant (c) Acceptance, during the course of the arguments
by the plaintiffs of
payable by the royal treasury during the rule of
Babur and the British Suit 5, that namaz was offered in the mosque until
16 December
administration continued the grant;
1949;
(ii) Several attempts of trespass and encroachment
by Sikhs and Hindus were (vi) The rights which the Hindus claim are based
purely on illegal acts:
repulsed by the Muslims and even the authorities of
the state protected (a) Preventing or harassing Muslims when they
proceeded to the
their rights by directing -
mosque to offer namaz;
(a) Eviction of Hindu / Sikh squatters from the
mosque; and (b) Destroying a part of the mosque in 1934 leading
to repairs and the
(b) Removal of offending constructions;
imposition of fines on the Hindus;
(iii) At least in 1885, the general belief of the
Hindus was that the birth-place of (c) Desecration of the mosque on 22/23 December
1949; and
Lord Ram was at the Ramchabutra. This belief was
noted in the Suit of (d) Demolition of the mosque on 6 December 1992
in violation of the
PART O
status quo orders of this Court;
895
(vii) The disputed structure has in consequence
1885 in which there was a finding that the Hindus always been a mosque which
had no title over the
remained in possession of Muslims from 1528 until
Chabutra and their rights at the highest were its desecration on
prescriptive in nature;
22/23 December 1949.
(iv) The Hindus have always referred to the
disputed structure as a mosque PART O

and recognised it as such; 896

783. This limb of the submission of Dr Dhavan is

essentially founded on

523
possessory title. In the earlier analysis on the claim possession. That is why the provision postulates
of an independent title, it has that where a person is shown to

been found that the Muslims have been unable to be in possession, and a question arises as to
establish a specific grant of the whether that person is the owner,

land underlying the mosque as a foundation of PART O

legal title during Muslims rule or
897
upon the transfer of power to the colonial
administration after 1857. The the law casts the burden of disproving ownership
on the individual who affirms
documentary evidence which has been relied upon
consists of revenue records that the person in possession is not the owner.

pertaining to grants for the upkeep and 785. Several decisions of this Court have
maintenance of the mosque. Dr Dhavan interpreted the provisions of Section

has however urged for the acceptance of the claim 110. Section 110 is based on the principle that
of the Muslims that they were possession in and of itself may

in possession of the inner and outer courtyard and raise a presumption of title. But this applies when
the continuous nature of that the facts disclose no title in

possession creates a presumption of title which the either of the disputants in which case, as it is said,
Hindus cannot displace. possession alone decides.

784. Section 110 of the Evidence Act 1872 Hence, on the other hand, it is also well-settled that
provides thus: the presumption cannot be

―Section 110.- Burden of proof as to ownership - arise when the facts are known.
when the question is whether any person is owner
In Nair Service Society Ltd. v K C Alexander398,
of anything of which he is shown to be in
Justice M Hidayatullah (as the
possession, the burden of proving that he is not the
owner is on the person who affirms that he is not learned Chief Justice then was) speaking for a three
the owner.‖ judge Bench of this Court
Section 110 deals with the burden of proof. Where held:
the provision applies, the
―17…That possession may prima facie raise a
burden of proving that another person who is in presumption of title no one can deny but this
possession is not the owner lies presumption can hardly arise when the facts are
known. When the facts disclose no title in either
on the person who affirms against the ownership of
party, possession alone decides.‖
that other person. But, for
In M S Jagadambal v Southern Indian Education
Section 110 to be attracted, there must be a
Trust399 , Justice K
question as to whether any person is
Jagannatha Shetty, speaking for a two judge Bench
the owner of anything and the ownership claimed
of this Court held that
must be that of which he is
possession continues with the title holder unless
shown to be in possession. Section 110 is based on
and until the defendant acquires
the principle that title follows
title by adverse possession:

524
―18…The possession continues with the title where there is either no proof, or very little proof of
holder unless and until the defendant acquires title ownership on either side. The maxim ―possession
by adverse possession. There would be no follows title‖ is applicable in cases where proof of
continuance of adverse possession when the land actual possession cannot reasonably be expected,
remains submerged and when it is put out of use for instance, in the case of wastelands, or where
and enjoyment. In such a case the party having title nothing is known about possession one way or
could claim constructive possession provided the another. Presumption of title as a result of
title had not been extinguished by adverse possession, can arise only where facts disclose that
possession before the last no title vests in any party. Possession of the
plaintiff is not prima facie wrongful, and title of the
398 AIR 1968 SC 1165 plaintiff is not proved. It certainly does not mean
399 1988 (Supp) SCC 144 that because a man has title over some land, he is
necessarily in possession of it. It in fact means, that
PART O
if at any time a man with title was in possession of
898 the said property, the law allows the presumption
that such possession was in continuation of the title
submergence. There is no difference in principle vested in him. A person must
between seasonal submersion and one which 400 (2003) 3 SSC 472 401 (2013) 9 SCC 319
continues for a length of time.‖
PART O
In Chief Conservator of Forests, Govt of A P v
Collector400, Justice Syed 899

Shah Mohammed Quadri, speaking for a two judge establish that he has continued possession of the
Bench of this Court held: suit property, while the other side claiming title,
must make out a case of trespass/encroachment,
―20…presumption, which is rebuttable, is etc. Where the apparent title is with the plaintiffs, it
attracted when the possession is prima facie lawful is incumbent upon the defendant, that in order to
and when the contesting party has no title.‖ displace this claim of apparent title and to establish
beneficial title in himself, he must establish by way
In State of A P v Star Bone Mill & Fertiliser of satisfactory evidence, circumstances that favour
Company401, this Court held that his version. Even, a revenue record is not a
document of title. It merely raises a presumption in
the object of Section 110 is based on public policy.
regard to possession. Presumption of possession
The object is to prevent
and/or continuity thereof, both forward and
persons from committing a breach of peace by backward, can also be raised under Section 110 of
taking the law into their own the Evidence Act.‖ (Emphasis supplied)

hands however good their title may be over the In assessing this limb of the submission on the
land in question. This object applicability of Section 110 the

underlies provisions such as Section 6 of the crucial test is whether the disputed site represents
Specific Relief Act 1963, Section ―anything of which‖ the Muslim

145 of the Code of Criminal Procedure 1973 and parties are ―shown to be in possession‖. Unless the
Sections 154 and 158 of the ‗shown to be in possession‘

Indian Penal Code 1860. Justice B S Chauhan requirement is fulfilled, the presumption would not
speaking for a two judge Bench of arise and there would be no

this Court explained in the above decision that: question of placing the burden of establishing that
the plaintiffs in Suit 4 are not
―21…The said presumption is read under Section
114 of the Evidence Act, and applies only in a case the owners on the contesting Hindu parties.

525
Analysis on the Muslim claim of possession 1743-1785 provided an account of Ayodhya.
Conspicuous in both the
786. The case of the plaintiffs in Suit 4 has to be
evaluated on the basis of the accounts are references to worship by the Hindus to
Lord Ram. The
entirety of the evidence on the record to deduce
whether possession has been positive account of Hindu worship to Lord Ram is
of probative value.
established on a preponderance of probabilities.
The evidence reveals several Tieffenthaler specifically refers to Hindu places of
worship including Sita
significant features which must be noted:
Rasoi, Swargdwar and the Bedi or cradle
(i) Though, the case of the plaintiffs in Suit 4 is that symbolising the birth of Lord
the mosque was
Ram. The account refers to religious festivals
constructed in 1528 by or at the behest of Babur, where during the course of
there is no account by
which Hindu devotees would throng for worship.
them of possession, use or offer of namaz in the Tieffenthaler‘s account in
mosque between the date
the eighteenth century is prior to the construction
of construction and 1856-7. For a period of over of the grill–brick wall in
325 years which elapsed
front of the mosque. Tieffenthaler refers to ―a
since the date of the construction of the mosque square box raised 5 inches
until the setting up of a
above the ground with borders made of lime with
PART O the length of more than 5

900 ells and the maximum width of 4 ells‖, which the

Hindus called the Bedi or
grill-brick wall by the British, the Muslims have
not adduced evidence to cradle. This, as he notes, was the site of the house
where Lord Vishnu was
establish the exercise of possessory control over the
disputed site. Nor is born in the form of the Lord Ram. This, as he
notes, is where it was
there any account in the evidence of the offering of
namaz in the mosque, believed that either Aurangzeb or (according to
others) Babur got the place
over this period;
razed. Tieffenthaler, however, noted that in the
(ii) On the contrary, the travelogues (chiefly
place where the ―native
Tieffenthaler and Montgomery
PART O
Martin) provide a detailed account both of the faith
and belief of the 901

Hindus based on the sanctity which they ascribed house‖ of Lord Ram existed the Hindus
to the place of birth of circumambulate three times and

Lord Ram and of the actual worship by the Hindus prostrate on the floor. This account of Tieffenthaler
at the Janmasthan; refers to a focal point of

(iii) William Finch (1608-11) and Tieffenthaler worship namely the birth-place of Lord Ram
who visited India between around which worship took

526
place and the Hindus circumambulated and PART O
prostrated;
902
(iv) The communal riots that took place in 1856-7
resulted in the colonial Nihang Singh was evicted following the
intervention of the authorities of
administration setting up a grill-brick wall to bring
about a measure of the state;

peace between the conflicting claims of the two (vii) Until 1877, there was only one entry through
communities. The which access could be gained

immediate aftermath of the railing led to the to the inner courtyard which was the door on the
dispute over the Ramchabutra, eastern side called

which was erected right outside the railing and Hanumat Dwar. On gaining entry, the Hindus had
from where the Hindus several places of

sought to offer worship to Lord Ram. The time of worship such as the Ramchabutra and Sita Rasoi as
the setting up of the well as the Bhandar

Chabutra, the place of its location and the offer of which indicated that insofar as the outer courtyard
worship to Lord Ram on is concerned, the

Chabutra are pointers in the direction of the Hindus Hindus were in settled possession;
continuing to offer
(viii) The opening of an additional door on the
worship immediately outside the railing when northern side which came to be
faced with a possible
known as Singh Dwar was warranted as a measure
exclusion from the inner courtyard; to ensure the safe

(v) The construction of the grill-brick wall during passage of a large number of pilgrims who entered
the colonial administration did the premises to offer

not constitute any determination of title as between worship. Objections to the opening of Singh Dwar
the Hindus and the were dealt with and

Muslims but was a measure intended to maintain resulted in their rejection as a consequence of
public peace and safety which the opening of an

having regard to the incidents which had taken additional door providing access became an
place in 1856-7 resulting in established fact;

a loss of life; (ix) Disputes between the Hindus and the Muslims
continued to persist,
(vi) That the setting up of a buffer in the form of
the grill-brick wall did not indicating the litigious nature of the respective
claims, in respect of the
amount to an absolute exclusion appears from
sporadic incidents such as inner courtyard;

the incident involving the setting up of a flag and (x) In 1934, there was yet another communal riot
the performance of during the course of which

hawan and puja by the Nihang Singh within the the domed structure of the mosque was damaged.
precincts of the mosque. This led to the

527
imposition of a fine on the Hindu residents of intermittent and interrupted; and
Ayodhya and the work of
(xii) On 22/23 December 1949, idols were installed
restoration being carried out at the expense of the below the central dome of
colonial administration
the inner structure which, according to the
through a Muslim contractor. This indicates that Muslims, led to the desecration
while the Hindus had
of the mosque. Prior to this, the last namaz was
continued to offer worship continuously in the offered on Friday, 16
outer courtyard, there was
December 1949. The Friday namaz due on 23
no abandonment of the claim by the Muslims of the December 1949 could not
status of the structure
be offered due to the intervening desecration of the
PART O mosque.

903

inside the inner courtyard as a mosque. After 1934, The Sunni Central Waqf Board‘s case of
there is documentary possession to attract the applicability of

material to indicate that arrangements were made Section 110 of the Evidence Act must therefore be
for the appointment of a assessed from two

Pesh Imam and Mutawalli for the mosque which perspectives: First, insofar as the outer courtyard is
would belie the notion that concerned, it is impossible to

there was an abandonment of the mosque; accept on the basis of a preponderance of

probabilities that the Muslims were in
(xi) After 1934, evidence indicates that Muslim
worship in the form of namaz PART O

had reduced as a result of the obstructions in their 904

access to the inner
possession. On the contrary, the establishment of
courtyard. By 16 December 1949 (the last Friday Hindu places of worship in the
namaz) the mosque was
outer courtyard clearly belies such a claim. Second,
being used for the purposes of Friday namaz. The insofar as the inner courtyard
circumstances bearing
is concerned, the claim of the Muslims must
upon the restoration of the damage which was done necessarily be assessed with
to the mosque in
reference to various time periods namely (i) prior
1934, availing of the services of the Pesh Imam and to 1856; (ii) between 1856 and
the offering of namaz
1934; and (iii) after 1934.
albeit to a reduced extent are circumstances which
point to a reasonable 787. The Muslim account of worship prior to 1856
is conspicuously silent as
inference that there was no total ouster of the
Muslims from the inner opposed to the accounts of worship being offered
by the Hindus. Post the setting
structure prior to 22/23 December 1949 though
their access was up of the wall and railing, it is evident that there
were obstructions which arose in

528
the continued worship of the Muslims in the inner (i) Archaeological finds in the area of excavation
courtyard which is evidenced reveal significant

by numerous proceedings as well as by the riots of traces of successive civilisations, commencing with
1934. Yet, the manner in the age of the

which the restoration of the mosque took place North Black Polished Ware traceable to the second
after the riots and the century B.C.;

arrangements in particular for the services of the (ii) The excavation by the ASI has revealed the
Pesh Imam indicate that the existence of a pre

obstruction notwithstanding, some form of namaz existing underlying structure dating back to the
continued to be offered in the twelfth century. The

mosque until 16 December 1949. While, as the structure has large dimensions, evident from the
Waqf Inspector indicated, the fact that there were

process of namaz was being obstructed and the 85 pillar bases comprised in 17 rows each of five
worshippers were harassed, pillar bases;

there is no evidence to show the abandonment of (iii) On a preponderance of probabilities, the

the claims by the Muslims. In archaeological findings on

fact, the documentary and oral evidence indicates the nature of the underlying structure indicate it to
that Friday namaz was be of Hindu

intermittently being offered until 16 December religious origin, dating to twelfth century A.D.;
1949. Though, the claim of the
(iv) The mosque in dispute was constructed upon
Muslims over the inner courtyard was not the foundation of the
abandoned, yet as the evidence
pre-existing structure. The construction of the
indicates, this was a matter of contestation and mosque has taken
dispute.
place in such a manner as to obviate an
independent foundation by

PART P utilising the walls of the pre-existing structure; and

905 (v) The layered excavation at the site of excavation

has also revealed
P. Analysis on title
the existence of a circular shrine together with a
P.1 Marshalling the evidence in Suit 4 and Suit 5 makara pranala

788. A stage has now been reached to marshal PART P

together the evidence on the
906
claim of title in Suit 4 and Suit 5 to pave the way
for the ultimate determination of indicative of Hindu worship dating back to the
eighth to tenth
the relief to be granted.
century.
I The report of the ASI indicates the following
position: A reasonable inference can be drawn on the basis
of the standard of proof which

529
governs civil trials that: No evidence is available to explain what transpired
in the course of
(i) The foundation of the mosque is based on the
walls of a large pre-existing the intervening period of nearly four centuries;

structure; (iii) The ASI report does not conclude that the
remnants of the pre-
(ii) The pre-existing structure dates back to the
twelfth century; and existing structure were used for the purpose of
constructing the
(iii) The underlying structure which provided the
foundations of the mosque mosque (apart, that is, from the construction of the
mosque on the
together with its architectural features and
recoveries are suggestive of a foundation of the erstwhile structure); and

Hindu religious origin comparable to temple (iv) The pillars that were used in the construction
excavations in the region and of the mosque were

pertaining to the era. black Kasauti stone pillars. ASI has found no
evidence to show that
II The conclusion in the ASI report about the
remains of an underlying these Kasauti pillars are relatable to the underlying
pillar bases
structure of a Hindu religious origin symbolic of
temple architecture of the twelfth found during the course of excavation in the
structure below the
century A.D. must however be read contextually
with the following caveats: mosque.

(i) While the ASI report has found the existence of III A finding of title cannot be based in law on the
ruins of a pre archaeological findings

existing structure, the report does not provide: which have been arrived at by ASI. Between the
twelfth century to which the
(a) The reason for the destruction of the pre-
existing underlying structure is dated and the construction
of the mosque in the sixteenth
structure; and
century, there is an intervening period of four
(b) Whether the earlier structure was demolished centuries. No evidence has been
for
placed on the record in relation to the course of
the purpose of the construction of the mosque. human history between the

(ii) Since the ASI report dates the underlying twelfth and sixteen centuries. No evidence is
structure to the twelfth available in a case of this antiquity

century, there is a time gap of about four centuries on (i) the cause of destruction of the underlying
between the structure; and (ii) whether the

date of the underlying structure and the pre-existing structure was demolished for the
construction of the mosque. construction of the mosque. Title to

PART P the land must be decided on settled legal principles

and applying evidentiary
907

530
standards which govern a civil trial. has withstood the searching scrutiny of cross-
examination. Similarly, the contents
IV Historical records of travellers (chiefly
Tieffenthaler and the account of of gazetteers can at best provide corroborative
material to evidence which
Montgomery Martin in the eighteenth century)
indicate: emerges from the record. The court must be
circumspect in drawing negative
PART P
inferences from what a traveller may not have seen
908 or observed. Title cannot be

(i) The existence of the faith and belief of the established on the basis of faith and belief above.
Hindus that the disputed site Faith and belief are indicators

was the birth-place of Lord Ram; towards patterns of worship at the site on the basis
of which claims of possession
(ii) Identifiable places of offering worship by the
Hindus including Sita Rasoi, are asserted. The court has evaluated the rival
claims to possessory title in a
Swargdwar and the Bedi (cradle) symbolising the
birth of Lord Ram in and PART P

around the disputed site; 909

(iii) Prevalence of the practice of worship by situation in which the state has expressly stated in
pilgrims at the disputed site its written statement that it

including by parikrama (circumambulation) and the claims no interest in the land.

presence of large
V The evidence indicates that despite the existence
congregations of devotees on the occasion of of a mosque at the site,
religious festivals; and
Hindu worship at the place believed to be the birth-
(iv) The historical presence of worshippers and the place of Lord Ram was not
existence of worship at the
restricted. The existence of an Islamic structure at a
disputed site even prior to the annexation of Oudh place considered sacrosanct
by the British and the
by the Hindus did not stop them from continuing
construction of a brick-grill wall in 1857. their worship at the disputed site

Beyond the above observations, the accounts of the and within the precincts of the structure prior to the
travellers must be read with incidents of 1856-7. The

circumspection. Their personal observations must physical structure of an Islamic mosque did not
carefully be sifted from shake the faith and belief of

hearsay – matters of legend and lore. Consulting Hindus that Lord Ram was born at the disputed
their accounts on matters of site. On the other hand, learned

public history is distinct from evidence on a matter counsel fairly stated that the evidence relied on by
of title. An adjudication of title the Sunni Central Waqf Board

has to be deduced on the basis of evidence to establish the offering of namaz by the Muslim
sustainable in a court of law, which residents commences from

531
around 1856-7; perform puja both within and outside the precincts
of the inner courtyard. Even
VI The setting up of a railing in 1857 by the British
around the disputed after the setting up of the Ramchabutra, pilgrims
used to pay obeisance and
structure of the mosque took place in the backdrop
of a contestation and disputes make offerings to what they believed to be the
‗Garbh Grih‘ located inside the
over the claim of the Hindus to worship inside the
precincts of the mosque. This three domed structure while standing at the iron
railing which divided the inner
furnished the context for the riots which took place
between Hindus and Muslims and outer courtyards. There is no evidence to the
contrary by the Muslims to
in 1856-7. The construction of a grick-brick wall
by the colonial administration indicate that their possession of the disputed
structure of the mosque was
was intended to ensure peace between the two
communities with respect to a exclusive and that the offering of namaz was
exclusionary of the Hindus;
contested place of worship. The grill-brick wall did
not constitute either a sub VIII Hindu worship at Ramchabutra, Sita Rasoi
and at other religious places
division of the disputed site which was one
composite property, nor did it amount including the setting up of a Bhandar clearly
indicated their open, exclusive and
to a determination of title by the colonial
administration; unimpeded possession of the outer courtyard. The
Muslims have not been in
VII Proximate in time after the setting up of the
railing, the Ramchabutra was possession of the outer courtyard. Despite the
construction of the wall in 1858 by
set up in or about 1857. Ramchabutra was set up in
close physical proximity to the British and the setting up of the Ramchabutra in
close-proximity of the inner
PART P
dome, Hindus continued to assert their right to pray
910 inside the three-domed

the railing. Essentially, the setting up of structure;

Ramchabutra within a hundred feet or
IX In or about 1877, at the behest of the Hindus,
thereabouts of the inner dome must be seen in the another door to the outer
historical context as an
courtyard was allowed to be opened by the
expression or assertion of the Hindu right to administration on the northern side
worship at the birth-place of Lord
(Sing Dwar), in addition to the existing door on the
Ram. Even after the construction of the dividing east (Hanumat Dwar). The
wall by the British, the Hindus
PART P
continued to assert their right to pray below the
central dome. This emerges from 911

the evidentiary record indicating acts of individuals Deputy Commissioner declined to entertain a
in trying to set up idols and complaint against the opening

532
made in the wall. The Commissioner while its construction in the sixteenth century with the
dismissing the appeal held that the inscription of ‗Allah‘ on the

opening up of the door was in public interest. The structure. The genesis of the communal incident of
opening of an additional door 1856-7 lies in the contestation

with the permission of the British administration between the two communities over worship. The
indicates recognition of the setting up of the railing in 1856

presence of a large congregation of Hindu devotees PART P

necessitating additional
912
access to the site in the interest of public peace and
safety; 7 was an attempt by the administration to provide a
measure of bifurcation to
X Testimonies of both Hindu and Muslim
witnesses indicate that on religious observe religious worship – namaz by the Muslims
inside the railing within the
occasions and festivals such as Ram Navami,
Sawan Jhoola, Kartik Poornima, domed structure of the mosque and worship by the
Hindus outside the railing.
Parikrama Mela and Ram Vivah, large
congregations of Hindu devotees visited Attempts by the Sikhs or faqirs to enter into the
mosque and set up religious
the disputed premises for darshan. The oral
testimony of the Hindu devotees symbols for puja were resisted by the Muslims,
resulting in the administration
establishes the pattern of worship and prayer at Sita
Rasoi, Ramchabutra and evicting the occupier;

towards the ‗Garb Grih‘, while standing at the XIII After the construction of the grill-brick wall in
railing of the structure of the brick 1857, there is evidence on

wall; record to show the exclusive and unimpeded

possession of the Hindus and the
XI Hindu witnesses have indicated that Hindus
used to offer prayer to the offering of worship in the outer courtyard. Entry
into the three domed structure
Kasauti stone pillars placed inside the mosque.
Muslim witnesses have was possible only by seeking access through either
of the two doors on the
acknowledged the presence of symbols of Hindu
religious significance both eastern and northern sides of the outer courtyard
which were under the control of
inside and outside the mosque. Among them, is the
depiction of Varah, Jai-Vijay the Hindu devotees;

and Garud outside the three domed structure. They XIV On a preponderance of probabilities, there is
are suggestive not merely of no evidence to establish that

the existence of the faith and belief but of actual the Muslims abandoned the mosque or ceased to
worship down the centuries; perform namaz in spite of the

XII There can no denying the existence of the contestation over their possession of the inner
structure of the mosque since courtyard after 1858. Oral

evidence indicates the continuation of namaz;

533
XV The contestation over the possession of the intimations to him, the Deputy Commissioner and
inner courtyard became the District Magistrate (K K Nayyar)

centre of the communal conflict of 1934 during the paid no heed and rejected the apprehension of the
course of which the domes of Superintendent of Police to

the mosque sustained damage as did the structure. the safety of the mosque as baseless. The
The repair and renovation of apprehension was borne out by the

the mosque following the riots of 1934 at the incident which took place on the night between
expense of the British administration 22/23 December 1949, when a

through the agency of a Muslim contractor is group of fifty to sixty persons installed idols on the
indicative of the fact the despite the pulpit of the mosque below the

disputes between the two communities, the central dome. This led to the desecration of the
structure of the mosque continued to mosque and the ouster of the

exist as did the assertion of the Muslims of their Muslims otherwise than by the due process of law.
right to pray. Namaz appears to The inner courtyard was

PART P thereafter attached in proceedings under Section

145 CrPC 1898 on 29
913
December 1949 and the receiver took possession;
have been offered within the mosque after 1934
though, by the time of incident of XVII On 6 December 1992, the structure of the
mosque was brought down and
22/23 December 1949, only Friday namaz was
being offered. The reports of the the mosque was destroyed. The destruction of the
mosque took place in breach
Waqf Inspector of December 1949 indicate that the
Sadhus and Bairagis who of the order of status quo and an assurance given to
this Court. The destruction
worshipped and resided in the outer courtyard
obstructed Muslims from passing PART P

through the courtyard, which was under their 914

control, for namaz within the
of the mosque and the obliteration of the Islamic
mosque. Hence the Waqf Inspector noted that structure was an egregious
worship within the mosque was
violation of the rule of law;
possible on Fridays with the assistance of the
police; XVIII The net result, as it emerges from the
evidentiary record is thus:
XVI The events preceding 22/23 December 1949
indicate the build-up of a (i) The disputed site is one composite whole. The
railing set up in
large presence of Bairagis in the outer courtyard
and the expression of his 1856-7 did not either bring about a sub-division of
the land or any
apprehension by the Superintendent of Police that
the Hindus would seek forcible determination of title;

entry into the precincts of the mosque to install (ii) The Sunni Central Waqf Board has not
idols. In spite of written established its case of a

534
dedication by user; conscience, both Suits 4 and 5 will have to be
decreed and the relief
(iii) The alternate plea of adverse possession has
not been established moulded in a manner which preserves the
constitutional values of
by the Sunni Central Waqf Board as it failed to
meet the justice, fraternity, human dignity and the equality
of religious belief.
requirements of adverse possession;
XVIII The Hindus have established a
(iv) The Hindus have been in exclusive and clear case of a possessory title to the
unimpeded possession of
outside courtyard by virtue of long, continued and
the outer courtyard where they have continued unimpeded worship at the
worship;
Ramchabutra and other objects of religious
(v) The inner courtyard has been a contested site signficance. The Hindus and the
with conflicting claims
Muslims have contested claims to the offering
of the Hindus and Muslims; worship within the three domed

(vi) The existence of the structure of the mosque structure in the inner courtyard. The assertion by
until 6 December 1992 the Hindus of their entitlement

does not admit any contestation. The submission to offer worship inside has been contested by the
that the mosque Muslims.

did not accord with Islamic tenets stands rejected.

The evidence
Legality of the decree for partition by the High
indicates that there was no abandonment of the
Court
mosque by
789. The High Court on a finding that Hindus
Muslims. Namaz was observed on Fridays towards
and Muslims were in joint
December 1949,
possession directed a three-way bifurcation of the
the last namaz being on 16 December 1949;
disputed site, one third each
(vii) The damage to the mosque in 1934, its
being assigned to the Muslims, Hindus and
desecration in 1949 leading
Nirmohi Akhara. Justice S U Khan
to the ouster of the Muslims and the eventual
held that title follows possession and based on the
destruction on 6
provisions of Section 110 of
PART P
the Evidence Act came to the conclusion that the
915 disputed site should be equally

December 1992 constituted a serious violation of distributed between the three parties. Justice Sudhir
the rule of law; Agarwal held that the area

and under the central dome of the disputed structure is

believed to be and
(viii) Consistent with the principles of justice,
equity and good worshipped by the Hindus as the place of birth of
Lord Ram. This part of the land,

535
he held, constitutes the deity called ‗Sri The High Court was hearing: (i) a suit by a
Ramjanmsthan‘ which has specific worshipper seeking the enforcement

PART P of the right to pray (Suit 1); (ii) a suit by Nirmohi

Akhara asserting shebaiti rights
916
to the management and charge of the temple (Suit
significance to the Hindus. Insofar as the other land 3); (iii) a declaratory suit on
within the inner courtyard is
title by the Sunni Central Waqf Board and Muslims
concerned, Justice Agarwal held that it has been (Suit 4); and (iv) a suit for a
continuously used by members
declaration on behalf of the Hindu deities in which
of both communities for prayer and worship, an injunction has also been
noticing that the prayer for relief in
sought restraining any obstruction with the
Suit 5 had been ―worded in a manner showing construction of a temple (Suit 5). The
that the same has not been asked
PART P
from the Court but has been left to the discretion of
the Court if it finds expedient‖. 917

Justice Agarwal held that in order to do complete High Court was called upon to decide the question
justice and to avoid a of title particularly in the

multiplicity of litigation, it was open to the court to declaratory suits, Suits 4 and 5.
mould the relief under Order VII
792. In Srinivas Ram Kumar v Mahabir Prasad402,
Rule 7 of the CPC. Justice Agarwal therefore also a three judge Bench of this
joined in directing a three-way
Court held that it is not open to the court to grant
bifurcation in terms of a preliminary decree. Justice relief to the plaintiff on a case
D V Sharma, decreed Suit 5
for which there is no basis in the pleadings. Justice
in its entirety. B K Mukherjea held:

790. Mr K Parasaran, learned Senior Counsel, ―9...The question, however, arises whether, in the
appearing for the plaintiffs in Suit absence of any such alternative case in the plaint it
is open to the court to give him relief on that basis.
5, argued that in attempting to mould the relief ―to The rule undoubtedly is that the court cannot grant
do complete justice‖, the High relief to the plaintiff on a case for which there was
no foundation in the pleadings and which the other
Court assumed a jurisdiction which did not vest in
side was not called upon or had an opportunity to
it; such a power, it was urged,
meet.‖
lies in the exclusive jurisdiction of this Court under
This principle was reiterated in the judgment of the
Article 142 of the Constitution.
Constitution Bench in Sri
791. In assessing the correctness of the decree of
Venkataramana Devaru v State of Mysore403,
the High Court, it must be
Justice Venkatarama Aiyar,
noted at the outset that the High Court was not
speaking for this Court held:
seized of a suit for partition. In a
―The object of requiring a party to put forward his
suit for partition, it is trite law that every party is
pleas in the pleadings is to enable the opposite
both a plaintiff and defendant.
party to controvert them and to adduce evidence in

536
support of his case. And it would be neither legal certainly no warrant in the reliefs which were
nor just to refer to evidence adduced with reference claimed to direct a division of the
to a matter which was actually in issue and on the
basis of that evidence, to come to a finding on a land in the manner that a court would do in a suit
matter which was not in issue, and decide the rights for partition.
of parties on the basis of that finding.‖
793. As Justice S B Sinha held while speaking for a
The High Court has adopted a path which was not two judge Bench of this
open to it in terms of the
Court in Shiv Kumar Sharma v Santosh
principles formulated above. It granted reliefs Kumari404:
which were not the subject matter
―27. A court of law cannot exercise its
of the prayers in the suits. In the process of doing discretionary jurisdiction dehors the statutory law.
so, it proceeded to assume the Its discretion must be exercised in terms of the
existing statute.‖
jurisdiction of a civil court in a suit for partition,
which the suits before it were not. [See also in this context the judgment of Justice
Ashok Bhan in Shamsu Suhara
Order VII Rule 7 of the CPC provides thus:
Beevi v G Alex405].
402 1951 SCR 277 403
1958 SCR 895 In Om Prakash v Ram Kumar406, Justice M
Fathima Beevi speaking for a three
PART P
judge Bench held:
918
404 (2007) 8 SCC 600
―7. Relief to be specifically stated- Every plaint 405 (2004) 8 SCC 569 at paragraph 11 406 (1991)
shall state specifically the relief which the plaintiff 1 SCC 441
claims either simply or in the alternative, and it
shall not be necessary to ask for general or other PART P
relief which may always be given as the Court may
919
think just to the same extent as if it had been asked
for. And the same rule shall apply to any relief ―4…A party cannot be granted a relief which is
claimed by the defendant in his written statement.‖ not claimed, if the circumstance of the case are
such that the granting of such relief would result in
The above provision requires a plaintiff to
serious prejudice to the interested party and deprive
specifically claim either simply or in the
him of the valuable rights under the statute.‖
alternative the relief, which is sought. However, it
The High Court has completely erred in granting
clarifies that it is not necessary
relief which lay outside the ambit
to ask for general and other reliefs which may
of the pleadings and the cases set up by the
always be given in the discretion of
plaintiffs in Suits 3, 4 and 5.
the court. This provision does not entitle the court
794. There is another serious flaw in the entire
in a civil trial to embark upon
approach of the High Court in
the exercise of recasting virtually the frame of a
granting relief of a three-way bifurcation of the
suit, which was undertaken by
disputed site. Having come to the
the High Court. There was no basis in the pleadings
conclusion that Suit 3 (filed by Nirmohi Akhara)
before the High Court and
and Suit 4 (filed by Sunni Central

537
Waqf Board) were barred by limitation, the High interfere with or dominate the freedoms and beliefs
Court proceeded to grant relief in of another. On 15 August

Suit 5 to the plaintiffs in Suits 3 and 4. This defies 1947, India as a nation realised the vision of self-
logic and is contrary to settled determination. On 26 January

principles of law. Moreover, the claim by the 1950 we gave ourselves the Constitution of India,
Nirmohi Akhara was as a shebait as an unwavering commitment

who claimed a decree for management and charge. to the values which define our society. At the heart
On its own case, Nirmohi of the Constitution is a

Akhara could not have been granted an commitment to equality upheld and enforced by the
independent share of the land. By this rule of law. Under our

judgment, the finding of the High Court that the Constitution, citizens of all faiths, beliefs and
suit of Nirmohi Akhara was barred creeds seeking divine provenance

by limitation has been upheld but the finding in are both subject to the law and equal before the
regard to the bar of limitation law. Every judge of this Court is

being attracted to Suit 4 has been reversed. This not merely tasked with but sworn to uphold the
aspect will be dealt with while Constitution and its values. The

analysing the final relief which will be granted. Constitution does not make a distinction between
the faith and belief of one
PART P
religion and another. All forms of belief, worship
920 and prayer are equal. Those

P.2 Conclusion on title whose duty it is to interpret the Constitution,

enforce it and engage with it can
795. The facts, evidence and oral arguments of the
present case have ignore this only to the peril of our society and
nation. The Constitution speaks to
traversed the realms of history, archaeology,
religion and the law. The law must the judges who interpret it, to those who govern
who must enforce it, but above
stand apart from political contestations over
history, ideology and religion. For a all, to the citizens who engage with it as an
inseparable feature of their lives.
case replete with references to archaeological
foundations, we must remember PART P

that it is the law which provides the edifice upon 921

which our multicultural society
796. In the present case, this Court is tasked with
rests. The law forms the ground upon which, an adjudicatory task of unique
multiple strands of history, ideology
dimension. The dispute is over immovable
and religion can compete. By determining their property. The court does not decide
limits, this Court as the final
title on the basis of faith or belief but on the basis
arbiter must preserve the sense of balance that the of evidence. The law provides
beliefs of one citizen do not
us with parameters as clear but as profound as
ownership and possession. In

538
deciding title to the disputed property, the court 922
applies settled principles of
between 22/23 December 1949 when the mosque
evidence to adjudicate upon which party has was desecrated by the
established a claim to the
installation of Hindu idols. The ouster of the
immovable property. Muslims on that occasion was not

797. On the balance of probabilities, there is clear through any lawful authority but through an act
evidence to indicate that the which was calculated to deprive

worship by the Hindus in the outer courtyard them of their place of worship. After the
continued unimpeded in spite of the proceedings under Section 145 of CrPC

setting up of a grill-brick wall in 1857. Their 1898 were initiated and a receiver was appointed
possession of the outer courtyard following the attachment of the

stands established together with the incidents inner courtyard, worship of the Hindu idols was
attaching to their control over it. permitted. During the pendency of

798. As regards the inner courtyard, there is the suits, the entire structure of the mosque was
evidence on a preponderance of brought down in a calculated act

probabilities to establish worship by the Hindus of destroying a place of public worship. The
prior to the annexation of Oudh Muslims have been wrongly deprived

by the British in 1857. The Muslims have offered of a mosque which had been constructed well over
no evidence to indicate that they 450 years ago.

were in exclusive possession of the inner structure 799. We have already concluded that the three-way
prior to 1857 since the date of bifurcation by the High

the construction in the sixteenth century. After the Court was legally unsustainable. Even as a matter
setting up of the grill-brick wall, of maintaining public peace

the structure of the mosque continued to exist and and tranquillity, the solution which commended
there is evidence to indicate itself to the High Court is not

that namaz was offered within its precincts. The feasible. The disputed site admeasures all of 1500
report of the Waqf Inspector of square yards. Dividing the

December 1949 indicates that Muslims were being land will not subserve the interest of either of the
obstructed in free and parties or secure a lasting

unimpeded access to mosque for the purposes of sense of peace and tranquillity.
offering namaz. However,
800. Suit 5 has been held to be maintainable at the
there is evidence to show that namaz was offered in behest of the first plaintiff
the structure of the mosque
(the deity of Lord Ram) who is a juristic person.
and the last Friday namaz was on 16 December The third plaintiff (next friend) has
1949. The exclusion of the
been held to be entitled to represent the the first
Muslims from worship and possession took place plaintiff. We are of the view that
on the intervening night
on the one hand a decree must ensue in Suit 5, Suit
PART P 4 must also be partly

539
decreed by directing the allotment of alternate land worship. Having weighed the nature of the relief
to the Muslims for the which should be granted to the

construction of a mosque and associated activities. Muslims, we direct that land admeasuring 5 acres
The allotment of land to the be allotted to the Sunni Central

Muslims is necessary because though on a balance Waqf Board either by the Central Government out
of probabilities, the evidence of the acquired land or by the

PART P Government of Uttar Pradesh within the city of

Ayodhya. This exercise, and the
923
consequent handing over of the land to the Sunni
in respect of the possessory claim of the Hindus to Central Waqf Board, shall be
the composite whole of the
conducted simultaneously with the handing over of
disputed property stands on a better footing than the disputed site comprising
the evidence adduced by the
of the inner and outer courtyards as a consequence
Muslims, the Muslims were dispossessed upon the of the decree in Suit 5. Suit 4
desecration of the mosque on
shall stand decreed in the above terms.
22/23 December 1949 which was ultimately
destroyed on 6 December 1992. PART P

There was no abandonment of the mosque by the 924

Muslims. This Court in the
802. Section 6 of the Acquisition of Certain Area at
exercise of its powers under Article 142 of the Ayodhya Act 1993
Constitution must ensure that a
empowers the Central Government to direct that
wrong committed must be remedied. Justice would the right, title and interest in
not prevail if the Court were to
relation to the area or any part thereof, instead of
overlook the entitlement of the Muslims who have continuing to vest in the Central
been deprived of the structure
Government shall vest in the authority or body or
of the mosque through means which should not trustees of any trust which is
have been employed in a secular
willing to comply with the terms and conditions as
nation committed to the rule of law. The government may impose.407
Constitution postulates the equality of all
Section 7(1) provides that the property vested in
faiths. Tolerance and mutual co-existnce nourish the Central Government under
the secular commitment of our
Section 3, shall be maintained by the government
nation and its people. or by any person or trustees of

801. The area of the composite site admeasures any trust, authorities in this behalf.408
about 1500 square yards.
803. We are of the view that it would be necessary
While determining the area of land to be allotted, it to direct the Central
is necessary to provide
Government to frame a scheme in exercise of the
restitution to the Muslim community for the powers conferred upon it by
unlawful destruction of their place of

540
Sections 6 and 7 to set up a trust or any other that the position existing before the commencement
appropriate mechanism to whom of this Act in the area on which the structure
(including the premises of the inner and outer
the land would be handed over in terms of the courtyards of such structure), commonly known as
decree in Suit 5. The scheme shall the Ram Janma Bhumi-Babri Masjid stood in
village Kot Ramchandra in Ayodhya, in Pargana
incorporate all provisions necessary to vest power
Haveli Avadh, in tehsil Faizabad Sadar, in the
and authority in relation to the
district of Faizabad of the State of Uttar Pradesh is
management of the trust or the body chosen for the maintained.
vesting of the land. 407
PART Q
6. Power of Central Government to direct vesting
of the area in another authority or body or trust.— 925
(1) Notwithstanding anything contained in Sections
3, 4, 5 and 7, the Central Government may, if it is 804. Suit 3 filed by Nirmohi Akhara has been held
satisfied that any authority or other body, or to be barred by limitation. We
trustees of any trust, set up on or after the
commencement of this Act is or are willing to have also rejected the objection of Nirmohi Akhara
comply with such terms and conditions as that and of the Sunni Central Waqf
Government may think fit to impose, direct by
Board to the maintainability of Suit 5 which was
notification in the Official Gazette, that the right,
based on their plea that Nirmohi
title and interest or any of them in reason to the
area or any part thereof, instead of continuing to Akhara is a shebait. Nirmohi Akhara‘s claim to be
vest in the Central Government, vest in that a shebait stands rejected.
authority or body or trustees of that trust either on
the date of the notification or on such later date as However, having regard to the historical presence
may be specified in the notification. (2) When any of Nirmohi Akhara at the
right, title and interest in relation to the area or part
thereof vest in the authority or body or trustees disputed site and their role, it is necessary for this
referred to in sub-section (1), such rights of the Court to take recourse to its
Central Government in relation to such area or part
powers under Article 142 to do complete justice.
thereof, shall, on and from the date of such vesting,
Hence, we direct that in framing
be deemed to have become the rights of that
authority or body or trustees of that trust. (3) The the scheme, an appropriate role in the management
provision of Sections 4, 5, 7 and 11 shall, so far as would be assigned to the
may be, apply in relation to such authority or body
or trustees as they apply in relation to the Central Nirmohi Akhara.
Government and for this purpose references therein
to the Central Government shall be construed as Q. Reliefs and directions
references to such authority or body or trustees.
805. We accordingly order and direct as follows:
408 7. Management of property by Government.—
1 (i) Suit 3 instituted by Nirmohi Akhara is
(1) Notwithstanding anything contained in any
held to be barred by limitation
contract or instrument or order of any court,
tribunal or other authority to the contrary, on and and shall accordingly stand dismissed;
from the commencement of this Act, the property
vested in the Central Government under Section 3 (ii) Suit 4 instituted by the Sunni Central Waqf
shall be managed by the Central Government or by Board and other plaintiffs
a person or body of persons or trustees of any trust
authorised by that Government in this behalf. (2) In is held to be within limitation. The judgment of the
managing the property vested in the Central High Court
Government under Section 3, the Central
holding Suit 4 to be barred by limitation is
Government or the authorised person shall ensure
reversed; and

541
(iii) Suit 5 is held to be within limitation. management and development in terms of the
scheme framed in
2 Suit 5 is held to be maintainable at the behest of
the first plaintiff who is accordance with the above directions; and

represented by the third plaintiff. There shall be a (iii) Possession of the disputed property shall
decree in terms of prayer continue to vest in the statutory

clauses (A) and (B) of the suit, subject to the receiver under the Central Government, untill in
following directions: exercise of its jurisdiction

PART Q under Section 6 of the Ayodhya Act of 1993, a

notification is issued vesting
926
the property in the trust or other body.
(i) The Central Government shall, within a period
of three months from the 3 (i) Simultaneously, with the handing over of the
disputed property to the Trust
date of this judgment, formulate a scheme pursuant
to the powers vested or body under clause 2 above, a suitable plot of
land admeasuring 5 acres
in it under Sections 6 and 7 of the Acquisition of
Certain Area at Ayodhya PART Q

Act 1993. The scheme shall envisage the setting up 927

of a trust with a Board
shall be handed over to the Sunni Central Waqf
of Trustees or any other appropriate body under Board, the plaintiff in Suit
Section 6. The scheme to
4.
be framed by the Central Government shall make
necessary provisions in (ii) The land shall be allotted either by:

regard to the functioning of the trust or body (a) The Central Government out of the land
including on matters relating acquired under the Ayodhya

to the management of the trust, the powers of the Act 1993; or

trustees including the
(b) The State Government at a suitable prominent
construction of a temple and all necessary, place in Ayodhya;
incidental and supplemental
The Central Government and the State Government
matters; shall act in consultation with

(ii) Possession of the inner and outer courtyards each other to effectuate the above allotment in the
shall be handed over to the period stipulated.

Board of Trustees of the Trust or to the body so (iii) The Sunni Central Waqf Board would be at
constituted. The Central liberty, on the allotment of the

Government will be at liberty to make suitable land to take all necessary steps for the construction
provisions in respect of the of a mosque on the

rest of the acquired land by handing it over to the land so allotted together with other associated
Trust or body for facilities;

542
(iv) Suit 4 shall stand decreed to this extent in acknowledge the assistance rendered by Mr K
terms of the above directions; and Parasaran and Dr Rajeev Dhavan,

(v) The directions for the allotment of land to the learned Senior Counsel who led the arguments.
Sunni Central Waqf Board in Their fairness to the cause which

Suit 4 are issued in pursuance of the powers vested they espouse and to their opponents as, indeed, to
in this Court under the court during the course of

Article 142 of the Constitution. the hearings has facilitated the completion of the
hearings in the spirit that all
4 In exercise of the powers vested in this Court
under Article 142 of the sides have ultimately been engaged in the search of
truth and justice.
Constitution, we direct that in the scheme to be
framed by the Central The other learned Senior Counsel whose efforts
need to be acknowledged are:
Government, appropriate representation may be
given in the Trust or body, to the Mr C S Vaidyanathan, Mr S K Jain, Mr Ranjit
Kumar, Mr Zafaryab Jilani, Ms
Nirmohi Akhara in such manner as the Central
Government deems fit. Meenakshi Arora, Mr Shekhar Naphade and Mr P
S Narasimha. We also
5 The right of the plaintiff in Suit 1 to worship at
the disputed property is acknowledge the assistance rendered to the court
by Mr P N Mishra, Mr Mohd
affirmed subject to any restrictions imposed by the
relevant authorities with Nizamuddin Pasha, Mr V N Sinha, Mr Hari
Shankar Jain, Mr Jaideep Gupta
PART Q
(learned Senior Counsel), Mr Vikas Singh (learned
928 Senior Counsel), Mr M C

respect to the maintenance of peace and order and Dhingra, and Mr Anoop Bose. While
the performance of orderly acknowledging the scholarly contributions

worship. made by the arguing counsel both in their oral

arguments and written
806. All the appeals shall stand disposed of in the
above terms. Parties are left PART Q

to bear their own costs. 929

Acknowledgments submissions, we must equally notice the sincerity

and dedication of the learned
In crafting this judgment, the forensic contest
before this Court has provided a assisting counsel and among them the industry of
the junior counsel.
valuable insight in navigating through the layers of
complexity of the case. The One of us, while being in agreement with the above
reasons and directions, has
erudition of counsel, their industry, vision and
above all, dispassionate objectivity recorded separate reasons on: ―Whether the
disputed structure is the birth-place
in discharging their role as officers of the court
must be commended. We of Lord Ram according to the faith and belief of the
Hindu devotees‖. The

543
reasons of the learned judge are set out in an Page 2
addendum.
Issue No.11 : Is the property in suit the site of
Janam Bhumi of Sri Ram Chandraji? Issue No.14:
Have the Hindus been worshiping the place in
.....…. dispute as Sri Ram Janam Bhumi or Janam Asthan
……...…...….......………………........CJI. and have been visiting it as a sacred place of
[RANJAN GOGOI] pilgrimage as of right since times immemorial ? If
so, its effect ? In Suit No.5 relevant issue was:
….…... Issue No.22: Whether the premises in question or
………...…...….......………………........J. any part thereof is by tradition, belief and faith the
[S A BOBDE] birth place of Lord Rama as alleged in paragraphs
19 and 20 of the plaint ? If so, its effect ?
..........
………...…...….......………………........J. 2. After noticing the issues relevant to the points
[DR DHANANJAYA Y CHANDRACHUD] under consideration, it is necessary to notice the
pleadings of the parties in brief in the above
……...………...…...….......
respect.
………………........J. [ASHOK
BHUSHAN] 3. In Suit No.1, the plaintiff, follower of Sanatan
Dharam is the resident of Ayodhya and as per his
religion, he used to worship and have the darshan
..….....…....………...…...….......……………...J. of the deities and Idols. It was pleaded in paragraph
[S ABDUL NAZEER] 1 and 2: “1. That the original Plaintiff, follower of
Sanatan Dharm and is the resident of Ayodhya and
New Delhi; November 09, 2019. as per his religion, he used to

Page 1 Page 3

ADDENDA Whether disputed structure is the worship and have the darshan of the deities and
holy birth place of Lord Ram as per the faith, idols and the present plaintiff like his deceased
belief and trust of the Hindus? father (original Plaintiff) is the follower of Sanatan
Dharma and performs the worship and has the
1. It is necessary to notice the issues framed in all darshan of the deities and holy places etc. 2. That
the suits related to the above and findings recorded the plaintiff has been worshipping and having
by the High Court. In Suit No.1 following was the darshan of the idol of Lord Shri Ram Chandra Ji
relevant issue: Issue No.1 was “Is the property in and Charan Paduka (foot impressions) etc., in that
suit the site of Janam Bhumi of Sri Ram Chandra Ji place of Janambhumi , details whereof has been
?” In Suit No.3 following were the relevant issues: given hereinbelow and he is entitled to perform
Issue No.1 : Is there a temple of Janam Bhumi with worship and have darshan in that place without any
idols installed therein as alleged in para 3 of the obstruction or interference and forever in future
plaint ? Issue No.5 : Is the property in suit a also.”
Mosque made by Emperor Babar known as Babri
Masjid ? 4. In the written statement filed by the defendant
No.1, Zahoor Ahmed, para 2 of the plaint was
In Suit No.4 relevant issues were: Issue No. 1(a) : replied in following manner: “2. The corresponding
When was it built and by whom-whether by Babar paragraph is denied. The property of which the case
as alleged by the plaintiffs or by Meer Baqui as has been filed is not Janambhumi but a mosque
alleged by defendant No. 13? Issue No. 1(b) : constructed by emperor of India Babar Shah.”
Whether the building had been constructed on the
site of an alleged Hindu temple after demolishing 5. In paragraph 9, it was pleaded that Mosque was
the same as alleged by defendant no. 13? If so, its constructed by emperor Babar Shah through its
effect? Minister, Mohammad Mir Baqi in the year 1528.
6. In paragraph 27 it was pleaded that in Ayodhya

544
there was a temple on the place of Janmasthan of has filed the suit is Babri Masjid built by Babar
Ram Janma Bhumi for quite long and still existing Shah constructed in the year 1528 A.D. U.P. Sunni
in which there Central Board of Wakf had also filed written
statement claiming the suit property as Mosque
Page 4 constructed by emperor Babar in 1528 and
existence of any temple was denied.
are Idols of Ramchandraji etc. It was stated that the
present suit claiming as Babri Masjid as the place Page 6
of Janmasthan against the defendants and other
persons is objectionable and is the result of 11. A written statement was also filed by
achieving nefarious ends and to take advantage in Defendant No.10, Umesh Chandra Pandey. In his
the coming elections. written statement he has stated that Janma Asthan
is holy place for worshiping the Deity of Ram Lalla
7. Plaintiff filed replication denying paragraph 9 of Virajman there.
the written statement. It was denied that Mosque is
the Babri Mosque. Paragraph 27 of the written 12. In Suit No.4, the plaintiff pleaded that in the
statement was also denied. It was stated that temple town of Ayodhya there exists an ancient historic
Janma Asthan mentioned by the defendant is Mosque commonly known as Babri Masjid built by
another temple whose boundaries were also emperor Babar more than 433 years ago, after his
mentioned in the replication. 8. Defendant conquest of India and occupation of territories
Nos.6, 8 and 9, who were the Stateparties also filed including the town of Ayodhya. In Suit No.4,
their written statement. written statement was filed by Defendant Nos.1
and 2. In paragraph 25 it was pleaded that members
9. U.P. Sunni Central Board of Wakf (hereinafter of the Hindu community have from time
referred to as “Sunni Board”), Defendant No.10, immemorial been worshiping the site as of the
filed written statement pleading that building Janma Bhumi. A written statement was also filed
referred to in paragraph 2 in the plaint is not place by Defendant No.3, Nirmohi Akhara and
of Janma Bhumi of Ram Chandra and plaintiff has Defendant No.4, Mahant Raghunath Das. The
no right and no Idols of Ram Chandra were ever existence of Mosque claimed by the plaintiff was
installed in the said building. There is no question denied. It was further pleaded that the alleged
of any right and claim of the Mosque never existed, nor it exists now. The
building which the plaintiffs have been wrongly
Page 5
referring as Babri Masjid is and has always been
plaintiff to perform Puja and Darshan. It was the temple of Janma Bhumi with Idols of Hindu
pleaded that property in suit known as Babri God installed
Masjid and same was constructed in the regime of
Page 7
emperor Babar. In the additional pleas in paragraph
10 following was stated: “That the property in suit therein. In the additional pleas it was pleaded that
is an old mosque constructed around the year 1528 the temple in question known as Janma Bhumi, the
AD during the regime of Emperor Babar under the birth place of Lord Ram Chandra, situate in
supervision of Mir Baqi and the same has always Ayodhya belongs and will always belongs to
been used as a mosque and it was never used as a Defendant No.3.
temple or as a place of worship for any other
community except muslims.” 13. In Suit No.4, written statement was also filed
by State, Defendant Nos.5 to 8 in which it was
10. Plaintiff of Suit No.3 pleaded that Janma pleaded that the Government is not interested in the
Asthan, now, commonly known as Janma Bhumi, property which is in dispute and as such it is not
birth place of Ram is situate in Ayodhya belonged proposed to contest the suit. Defendant No.10 filed
to plaintiff No.1. The said Asthan, the Janma a written statement and additional written
Bhumi is of ancient antiquity and has existed since statement. Few other defendants also filed written
before the living memory of man. The Muslims, statement. In written statement filed by Dharam
Defendant Nos.6 to 8 filed written statement where Das, Defendant No.13, it was pleaded that Mir
it was pleaded that property against which plaintiff Baqi, who was a Shia and commanded by Babar,

545
demolished the ancient Hindu temple at the time of Plaintiff Deities, and they never surrendered their
Raja Vikramaditya at Sri Ram Janma Bhumi. It possession over it. Their possession continued in
was, further, pleaded that originally there was a fact and in law. The ASTHAN never went out of
temple erected. Few of the other defendants filed the possession of the Deity and HIS worshippers.
written statements. Defendant No.20, the convenor They continued to worship HIM through such
of Akhil Bharatiya Shri Ram Janma Bhumi symbols as the CHARAN and SITA RASOI, and
Punrudhar Samiti filed a detailed written statement the idol of BHAGWAN SRI RAM LALLA
and additional statement. Plaintiff also filed a VIRAJMAN on the Chabutra, called the Rama
replication. Chabutra, within the enclosed courtyard of the
building directly in front of the arched opening of
Page 8 its Southern dome. No one could enter the building
except after passing through there can be no Idol
14. In Suit No.5 it was pleaded that premises in
worship within the courtyard of a mosque, and the
dispute is the place where Maryada Purushottam
passage to a mosque must be free and unobstructed
Ram Chandra Ji Maharaj was born. The Hindus
and open at all times to the ’Faithful’. It can never
worship divine which has no quality or shape or
be through Hindu place of worship. There can be
form. In paragraph 19 and 20 following was
no co-sharing of title or possession with ALLAH in
pleaded: “19. That is manifestly established by
the case of a mosque. His possession must be
public records of unimpeachable authority that the
exclusive.”
premises in dispute is the place where Maryada
Purushottam Ji Maharaj was born as the son of Page 10
Maharaja Dashrath of the solar Dynasty, which
according to the tradition and the faith of the 17. In paragraph 25 it was pleaded that worship of
devotees of Bhagwan Sri Rama is the place where the Plaintiff-Deities has continued since ever
HE manifested HIMSELF in human form as an throughout the ages at Sri Ram Janma Bhumi. The
incarnation of BHAGWAN VISHNU. The place place belongs to the Deities. No valid Waqf was
has since ever been called Sri Rama Janma Bhumi ever created or could have been created at the place
by all and sundry through the ages. 20. That the or any part of it, in view of the title and possession
place itself, or the ASTHAN SRI RAMA JANMA of the PlaintiffDeities thereon.
BHUMI, as it has come to be known, has been an
object of worship as a Deity by the devotees of 18. Defendant No.3, Nirmohi Akhara filed a
BHAGWAN SRI RAMA, as it personifies the written statement wherein denying paragraphs 19
spirit of the Divine worshipped in the form of SRI and 20 following was pleaded: “19. That the
RAMA LALA or Lord RAMA the child. The contents of para-19 need no reply except that
Asthan was thus Deified and has had a juridical though the birth place of Bhagwan Ram is place
personality of its own even before the construction where the temple known as Ram Janma Bhumi
of a Temple building or the installation of the idol Temple is constructed but the dispute is not
of Bhagwan Sri Rama there at.” regarding the place of birth of Lord Rama but
regarding the Temple known as Tample Shri Ram
15. In paragraph 23 of the plaint, plaintiff also Janma Bhumi. The belief that Lord Ram is the son
relied on ‘1928 Edition of the Fyzabad Gazetteer of Raja Dashrath of solar Dynasty is not disputed.
published by the Government Press, U.P. 20. That the contents of para-20 of the plaint are
denied. They are products of imagination of the so
Page 9 called Next Friend of the plaintiffs 1 and 2. The
plaintiffs studiously avoid to mention the subject of
16. It was further pleaded that disputed structure
dispute as the Ram Janma Bhumi Temple for
was raised on the land belonging to the plaintiff-
whose delivery of charge and management the
Deity after destroying the temple situate there. In
Nirmohi Akhara has filed the suit No.26 of 1959
paragraph 24(C), it was further pleaded that in spite
and maliciously uses the phrase Asthan Sri Ram
of all that Mir Baqi tried to do with the Temple, the
Janma Bhumi which is meaningless. The said
land always continued to vest in the Plaintiff-
Asthan is not a juridical person.”
Deities. Paragraph 24(C) is as follows: “24(C) That
in spite of all that Mir Baqi tried to do with the Page 11
Temple, the land always continued to vest in the

546
19. Additional written statements were also filed by Mosque since its construction during the regime of
defendant No.3. In para-42 of the additional written Emperor Babar.
statement it was pleaded that the outer Sahan
carried a little temple of Bhagwan Ram Lallaji Page 13
along with other Idols which was regularly
22. Defendant No.5 also filed written statement. It
worshipped according to the customs prevailing
was pleaded in para 19 that there is no evidence,
amongst Rama Nandi Vairagies. The outer part
historic or otherwise, to indicate that Sri Ram
with temple of Ram Lallaji and other Deities have
Chandra Ji was born there. Defendant Nos.4 and 5
ever been in management and charge of Nirmohi
also filed an additional written statement.
Akhara as Shebait. It was further pleaded that
attachment made in 1949 was only in respect of 23. The reference of one more written statement is
main building of Garbh Grahya carrying three necessary i.e. the written statement filed by
“Shikher” wherein the Deity of Bhagwan Sri Ram Defendant No.24. Defendant No.24 is Prince
Chandraji is installed by Nirmohi Akhara from Anjum, President, All India Shia Conference,
time beyond the human memory. Lucknow. In reference to Lord Ram, Defendant
No.24 has pleaded that Muslims of India has
20. The written statement was filed by Sunni
highest regard for Lord Ram. Pleadings made in
Board, Defendant No.4. In para-13, it was pleaded
para10 of the written statement in this regard are as
that building in dispute is not the Janam Bhumi of
follows: “10. With reference to the statements
Sri Ram Chandraji and no Idols of Ram Chandraji
made in paragraph 18, this defendant at the outset
were ever installed in the said building. In the
wishes to record the fact that he and the Muslims of
second part of para-13 following was pleaded:
India have the highest regard for Lord Rama. These
“13…… It is further submitted that the building in
sentiments of the Muslims are best reflected in the
dispute is not the Janam Bhoomi
poem entitled “Ram” composed by the greatest
Page 12 Muslim thinker of India of the present century
Allama Dr.Sir Muhammad Iqbal, who has summed
of Sri Ram Chandraji and no Idols of Sri Ram up in just one verse of the long poem what
Chandraji were ever installed in the said building Muslims of India think of Shri Ram Chanerji:
and as such there arises no question of any right or “Hae Ram ke wajood pa Hindostan ko naaz Ahl-e
claim of the defendant No.20 or of anyone else to Nazar Samajht-e hain usko Imam-eHind.”
perform Pooja and Darshan over there. The fact is
that the property in suit is an old mosque known as Page 14
Babri Masjid and the same was constructed during
Meaning- India is proud of the existence of Ram.
the regime of Emperor Babar.”
The intelligentsia consider him as the leader of
21. It was pleaded in para-19 that neither there is India.”
any public record, much less any record of
24. It was, however, denied that premises in dispute
unimpeachable authority showing that the premises
is the place where Ram Chandraji was born. In
in dispute is the place of birth of Sri Ram Chandraji
paragraph 15 of the written statement he has
nor there is any historical or judicial record to
referred to Maulana Syed Sabahuddin Abdur
testify. It was further pleaded in para-19 that
Rahman who in his treatise “BABRI MASJID” had
Hindu books as well as the writing of Hindu
stated that if it is proved that Babri Masjid has been
scholars themselves make it very doubtful as to
built after demolishing Ram Janam Bhumi Mandir
whether the personality of Sri Ram Chandraji is a
on its place, then such a Mosque if built on such an
historical personality. In para-24 it was pleaded
usurped land deserves to be destroyed. In
that at no point of time there ever existed any
paragraph 15 following was pleaded: “15………In
temple at the site of the Babri Masjid and it is
this connection, the celebrated Muslim historian
absolutely incorrect to say that the said Mosque
and scholar Maulana Syed Sabahuddin Abdur
was constructed, after destroying any ancient
Rahman (since expired) in his well-known treatise
temple, with the material of the alleged temple. The
“BABRI MASJID” wrote at page 5 at the very
Mosque in question has always been used as a
beginning of his preface thus: (translation from
Urdu) “On behalf of Muslims I also have a right

547
to say that if it is proved that Babri Masjid has been 27. The above is the relevant pleading of the parties
built after demolishing Ram Janam Bhoomi Mandir on the points under consideration.
on its place, then such a mosque if built on such an
usurped land deserves to be destroyed. No 28. Faith and belief foster and promote the spiritual
theologean or Aalim can give Fatwa to hold Namaz life of the soul.
in it.”
29. This Court in Shastri Yagnapurushadji and
25. To the same effect pleadings were made in others vs. Muldas Bhudardas Vaishya and another,
para-26 which are as follows: AIR 1966 SC 1119, explaining the Hindu religion
made the following observation in paragraphs 29,
Page 15 30 and 31: “29. When we think of the Hindu
religion, we find it difficult, if not impossible, to
“26. That as regards the contents of paragraphs 34 define Hindu religion or even adequately describe
and 35 of the Suit Plaint, the answering defendant it. Unlike other religions in the world, the Hindu
being a representative of the Shia Muslims of India religion does not claim any one prophet; it does not
is deadly against any form of sacrilegious actions. worship any one God; it does not subscribe to any
He is of the firm view that no place of worship of one dogma; it does not believe in any one
any religion should be destroyed and no place of philosophic concept; it does not follow any one set
worship should be constructed on the ruins of the of religious rites or performances; in fact, it does
destroyed one. The Answering defendant firmly not appear to satisfy the narrow traditional features
believes that the Babri Masjid was certainly not of any religion or creed. It may broadly be
built after destroying the Vikramaditya Mandir or described as a way of life and nothing more.
any temple. Yet, at the same time if it is
unequivocally proved in this Hon’ble Court in the Page 17
light of historical archaeological and expert
scientific evidence that the Babri Masjid was really 30. Confronted by this difficulty, Dr.
built after demolishing any Mandir on the Mandir Radhakrishnan realised that “to many Hinduism
land, only then this defendant will withdraw his seems to be a name without any content. Is it a
opposition. As a further concession to the museum of beliefs, a medley of rites, or a mere
Plaintiff No.3 and to the Hindu community of India map, a geographical expression?” Having posed
whose religious sentiments the said Plaintiff and these questions which disturbed foreigners when
his party are trying to wrongly arouse since last 3 they think of Hinduism, Dr Radhakrishnan has
years, this Defendant is prepared to withdraw his explained how Hinduism has steadily absorbed the
opposition also if it is unequivocally proved, in this customs and ideas of peoples with whom it has
Hon’ble Court that the belief, of Ram Janam come into contact and has thus been able to
Asthan being at the presently claimed spot inside maintain its supremacy and its youth. The term
the Babri Masjid, existed from before the Babri “Hindu”, according to Dr Radhakrishnan, had
Masjid was built, existed from before the Babri originally a territorial and not a credal significance.
Masjid was built. And that the Babri Masjid was It implied residence in a well-defined geographical
knowingly built on the Ram Janam Asthan sport.” area. Aboriginal tribes, savage and half-civilized
people, the cultured Dravidians and the Vedic
26. Defendant No.25 also filed written statement. It Aryans were all Hindus as they were the sons of
was pleaded that the area and the places indicated the same mother. The Hindu thinkers reckoned
in Annexure NO.1, 2 and 3 of the plaint are neither with the striking fact that the men and women
Ram dwelling in India belonged to different
communities, worshipped different gods, and
Page 16 practised different rites (Kurma Purana)(“The
Hindu View of Life” by Dr. Radhakrishnan, p.12).
Janma Bhumi nor Ram Janma Asthan. It was
31. Monier Williams has observed that “it must be
further stated that it is evident that there exists a
borne in mind that Hinduism is far more than a
Mosque known as Babri Masjid, the existence of
mere form of theism resting on Brahmanism. It
this Mosque is established by record, Historic,
presents for our investigation a complex congeries
Judicial and Revenue.
of creeds and doctrines which in its gradual

548
accumulation may be compared to the gathering 33. A long span of period, which spread into
together of the mighty volume of the Ganges, several centuries fall for consideration. The case of
swollen by a continual influx of tributary rivers and plaintiff of Suit No.4 as noted above is that Babri
rivulets, spreading itself over an everincreasing Mosque was constructed in 1528 by Mir Baqi on
area of country and finally resolving itself into an the order of Emperor Babar. Dr. Rajeev Dhavan,
intricate Delta of tortuous steams and jungly learned senior counsel appearing for plaintiff in
marshes... The Hindu religion is a reflection of the Suit NO. 4 for Muslim Parties as well as Shri
composite character of the Hindus, who are not one Zafaryab Jilani, learned senior counsel have
people but many. It is based on the idea of contended that there was no faith
universal receptivity. It has ever
Page 20
Page 18
and belief regarding the disputed site being Janma
aimed at accommodating itself to circumstances, Asthan of Lord Ram at any time before 1989, when
and has carried on the process of adaptation Suit No.5 was filed. It is submitted that theory of
through more than three thousand years. It has first disputed site being called as Janma Asthan of Lord
borne with and then, so to speak, swallowed, Ram is of recent origin and there are no evidence
digested, and assimilated something from all of any earlier time that Hindus had faith and belief
creeds”.(“Religious Thought & Life in India” by that where the Mosque was constructed was birth
Monier Williams, p.57)” 30. The concept of place of Lord Ram. Dr. Dhavan submits that the
Hinduism has been defined by great scholars and argument that Ayodhya Mahatmya in Skanda
jurists, but in this case, it is not necessary to dwell Purana gives the location of Ram Janma Bhumi,
upon concept of Hinduism. The core of all which matches with the site of Babri Masjid has
religions and faith is one, i.e., quest for truth, quest not been found correct. In support of his
for knowing more about soul and quest to know submission, he has relied on “Historian Report to
more about Supreme, who in one or other form is the Nation”, which has been exhibited by plaintiff
worshipped in all religions. Every religion, every in Suit No.5 (Ext. No.44) as well as plaintiff in Suit
faith revere and sings the glory of God with whom No.4 (Ext. No.62). It is submitted that the above
I all want to relate. Wordsworth in his beautiful report states that location described in the Ayodhya
poem has also echoed the same thought:- “Our Mahatmya in Skanda Purana does not match with
birth is but a sleep and a forgetting; The Soul that the present-day location of Babri Masjid. It is
rises with us, our life’s star Hath had elsewhere its submitted that no place in Ayodhya is associated
setting, And cometh from afar ; Not in entire with Lord Ram’s birth either in Eleventh Century
forgetfulness, And not in utter nakedness, But or even six centuries after. When a place is
trailing clouds of glory do we come From god who associated with the birthplace of Lord Ram,
is our home,” possibly in the later Eighteenth Century, its

Page 19 Page 21

31. Reverting back to the point which are up for location given in the various Mahatmyas does not
consideration, i.e., whether the disputed structure is tally with the Babri Masjid. The arguments based
holy birthplace of Lord Ram as per the faith, trust on book Ayodhya by Hans Bakker has also been
and belief of Hindus? refuted by Dr. Dhavan. He submits that no reliance
can be placed on the Hans Bakker since (i) Hans
32. Ayodhya, which is associated with Ram is Bakker proceeds on the presumption that Ayodhya
treated a holy city by Hindu scriptures. In Brihad- is not a real city but a figment of the poet’s
dharmottara Purana, Ayodhya is referred to one of imagination; (ii) Bakker proceeds by equating
seven holiest cities in following verse:- अयो�ा Ayodhya to the city of Saketa; (iii) Bakker further
मथु रा माया काशी का ची �व��का ।। पुरी states that even by mapping the birthplace from
�ारावती चै व स�ैता मो�दाियकाः । Ayodhya Mahatmya and ultimately states that
Ayodhya, Mathura, Maya (Haridwar), Kashi, Babri Masjid is built at the birthplace as is
Kanchi, Avantika (Ujjain) and Dvaravati confirmed by local belief; (iv) even the impugned
(Dwaraka) are seven most sacred cities. judgment records that Hans Bakker proceeds on the

549
basis of conjectures without assigning any reason. the period prior to 1858 as well as after 1858,
34. With regard to the statement recorded in which are in form of published books are relevant
various travelogues, Dr. Dhavan submits that and can be relied by the Court under Section 57 of
statement in travelogues are all hearsay and those Indian Evidence Act, 1872. Coming to the
travellers were only story tellers on which no Gazetteers, learned counsel submits that Gazetteers
reliance can be placed. Insofar as Gazetteers are are published work by Government authorities,
concerned, Dr. Dhavan submits that Gazetteers which has substantial evidentiary value. It is
which were prepared during the period of East submitted that Gazetteers have been relied by this
India Company were the Gazetteers prepared to Court in several cases and statements recorded in
Gazetteers has to be considered as substantial
Page 22 evidence and looked into. Shri P.S.

place before the Britishers and they being not under Page 24
governmental authority cannot be relied. He
submits that Gazettes prepared after 1858 when the Narsimha elaborating his submission submits that
British assumes sovereignty on the area in the test, which has to be applied for marshalling the
question, can be looked into, but those Gazettes evidence is the standard of preponderance of
cannot be stand alone evidence and needs probability. Referring to Section 3 of Evidence
corroboration by any other intrinsic evidence. He Act, he submits that proof of fact depends upon the
submits that the site of Babri Masjid was belief or probability of the fact looking to the
constructed in 1528 A.D. being not the birthplace circumstances of the particular case. It is submitted
of Lord Ram, there is no question of treating that oral and documentary evidence submitted on
construction of Babri Mosque on birthplace of Lord behalf of the Hindu parties proves the faith and
Ram. belief of Hindus that disputed site is birthplace of
Lord Ram. He submits that Valmiki Ramayana
35. Above submission has been refuted by learned refers to birth of Shri Ram in Ayodhya, which is
senior counsel, Shri K.Parasaran, Shri C.S. the epic of the East and considered to have become
Vaidyanathan, Shri P.N. Mishra and Shri P.S. the foundation of the culture and tradition of our
Narsimha. Shri C.S. Vaidyanathan, learned senior country. Skanda Purana is of Eighth Century A.D.,
counsel refuting the submissions of Dr. Dhavan which provides ample proof of faith that is instilled
contends that faith and belief of the Hindus in in the heart of Hindus, i.e., visit to birthplace of
respect of place where disputed structure was put Lord Ram, which is of extreme merit which, for
up during the Mughal period was the birthplace of Hindus, is nothing but Moksha. It is further
Lord Ram and has been since ages worshipped as submitted that repeated assertions and right to
such the place being divine and of sacred character. worship by the Hindus in the disputed premises and
It is submitted that scriptures and sacred writings, the various fights by Hindus is ample proof of their
which are of much earlier period than 1528 undying faith that disputed site is the birthplace of
Lord Ram. Shri
Page 23
Page 25
appropriately describes the Janma Asthan of Lord
Ram at Ayodhya. Reliance has been placed on P.N. Mishra elaborating his submission has placed
Skanda Purana, Vaisnavakhanda, Ayodhya reliance on Holy Scriptures Shrimad Valmiki
Mahatmya specifically. It is submitted that Ramayana and Srimad Skandpuranam,
Valmiki Ramayana, which is composition Before Rudrayamala, Sri Ramacharitamanasa and other
Christ also refers to Ayodhya as birthplace of Lord scriptures like Srimad Narashingha Puranam.
Ram, according to which Lord Ram was born at the Reliance has been placed on Verse 15 to 17 and 18
palace of King Dasratha at Ayodhya. ‘Ramcharit to 25 and particular pages of Ayodhya Mahatmya
Manasa’ by Tulsidas has also been referred to of Skanda Purana, he submits that the above verses
wherein the birth of Lord Ram at Ayodhya is gives the geographical situation of birthplace of
mentioned, which is being celebrated on Chaitra Lord Ram, which is still verifiable. Shri Mishra
Navami, Shukla Paksha every year. Learned took us to the oral evidence of witnesses where
counsel appearing for the Hindu parties also according to him witnesses have proved the
submits that travellers’ account, which relates to

550
locations as mentioned in the Skanda Purana with Ayodhya as described in Balmiki Ramayana or as
respect to birthplace of Lord Ram. Referring to existing today. It is, however, disputed and denied
map prepared by Hans Bakker and the site plan that the site of Babri Masjid was the place of birth
prepared by Shiv Shankar Lal in Suit No.2 of 1950, of Lord Rama. It is also denied that there was any
he submits that several marks mentioned in Skanda Ram Janam Bhoomi Temple at the site of Babri
Purana are still present, which certifies the location Masjid at any time whatsoever. The existence of
of birthplace as the disputed site. Nirmohi Akhara from the second half of
Nineteenth Century onwards is also not disputed.
36. The faith and belief that disputed site is It is, however, denied and disputed that Nirmohi
birthplace of Lord Ram has to be established since Akhara was in existence and specially in Ayodhya
before 1528 when disputed structure is said to have in 16the Century A.D. or in 1528 A.D. and it is also
denied that any idols were there in the building of
Page 26
the Babri Masjid up to 22nd December, 1949. Sd/-
been constructed by Babar. The oral evidence, Z. Jilani, Adv. 22.04.2009” To the same effect was
which has been led by the parties to support their statement made by another learned counsel Shri
respective cases can at best be the oral evidence of Mustaq Ahmad Siddiqui, who
that which has been seen by the witnesses, who
Page 28
depose before the Court, which can at best be of
things as existed in the Twentieth Century only. appeared for plaintiff in Suit No.4 and Shri Syed
There are some Exhibits filed by the parties, which Irfan Ahmad, counsel for defendant No.6/1 and 6/2
relates to Nineteenth Century. The Holy Scriptures in Suit No. 3. All the three statement in identical
relied by Hindu Parties being of older period, the words is extracted below:- “STATEMENT OF SRI
accounts of travelogues and Gazetteers belonging MUSAQ AHMAD SIDDIQUI, COUNSEL FOR
to different period, some before Nineteenth PLAINTIFF IN O.O.S. 4 OF 1989 MADE UNDER
Century, the period of consideration have to be ORDER X RULE 2 C.P.C. ON 22.04.2009. For
divided in three parts. First period before 1528, the purpose of this case there is no dispute about
second period from 1528 to 1858 and the third the faith of Hindu devotees of Lord Rama
period after 1858 to 1949. Although in the written regarding the birth of Lord Rama at Ayodhya as
statement filed by Muslim Parties, Sunni Central described in Balmiki Ramayana or as existing
Board under Suit No.5 pleaded that as a matter of today. It is, however, disputed and denied that the
fact, the religious books as well as the writings of site of Babri Masjid was the place of birth of Lord
Hindu Scholars makes it very difficult as to Rama. It is also denied that there was any Ram
whether personality of Shri Ram Chandra Ji is a Janam Bhoomi Temple at the site of Babri Masjid
historical personality, but by making statements at any time whatsoever. The existence of Nirmohi
under Order X Rule 2 of the Civil Procedure Code, Akhara from the second half of Nineteenth Century
which statements have been recorded by the High onwards is also not disputed. It is, however, denied
Court and has been and disputed that Nirmohi Akhara was in existence
and specially in Ayodhya in 16th Century A.D. or
Page 27
in 1528 A.D. and it is also denied that any idols
referred by the High Court in its judgment, the were there in the building of the Babri Masjid up to
stand of Muslim parties have been clarified. It is 22nd December, 1949. Sd/- M.A. Siddiqui, Adv.
necessary to refer the above statements made under 22.04.2009 STATEMENT OF SRI SYED IRFAN
Order X Rule II C.P.C. The statement of Shri AHMAD, COUNSEL FOR DEFENDANTS
Zafaryab Jilani, counsel for plaintiff in Suit No.4 No.6/1 and 6/2 IN O.O.S.NO.34 OF 1989 MADE
was recorded by the Full Bench of the High Court UNDER ORDER X RULE 2 C.P.C. ON
on 22.04.2009, which is to the following effect:- 22.04.2009. For the purpose of this case there is no
“STATEMENT OF SRI ZAFARYAB ZILANI, dispute about the faith of Hindu devotees of Lord
COUNSEL FOR PLAINTIFF IN O.O.S. 4 OF Rama regarding the birth of Lord Rama at
1989 MADE UNDER ORDER X RULE 2 C.P.C. Ayodhya as described in
ON 22.04.2009. For the purpose of this case there
Page 29
is no dispute about the faith of Hindu devotees of
Lord Rama regarding the birth of Lord Rama at

551
Balmiki Ramayana or as existing today. It is, regarded as integral parts of religion, and these
however, disputed and denied that the site of Babri forms and observances might extend even to
Masjid was the place of birth of Lord Rama. It is matters of food and dress.”
also denied that there was any Ram Janam Bhoomi
Temple at the site of Babri Masjid at any time Page 31
whatsoever. The existence of Nirmohi Akhara
39. Religious scriptures, which are main source of
from the second half of Nineteenth Century
Hinduism are the foundation on which faith of
onwards is also not disputed. It is, however, denied
Hindus is concretised. The epic Valmiki
and disputed that Nirmohi Akhara was in existence
Ramayana is the main source of knowledge of Lord
and specially in Ayodhya in 16th Century A.D. or
Ram and his deeds. The composition of Valmiki
in 1528 A.D. and it is also denied that any idols
Ramayana dates back in the period Before Christ
were there in the building of the Babri Masjid up to
(BC). The Valmiki Ramayana is of period earlier
22nd December, 1949. Sd/- S. Irfan Ahmad, Adv.
to Mahabharata and Srimad Bhagwadgita. The
22.04.2009”
period in which Valmiki Ramayana was composed
37. The stand of plaintiff of Suit No.4 with regard is much prior to beginning of Christian era. For the
to faith and belief of Hindus regarding birth of purposes of this case, it is sufficient to notice the
Lord Ram at Ayodhya having been made clear and statement of Suvira Jaiswal (PW-18), a witness
it having been accepted that there is no dispute produced by plaintiff of Suit No.4 as historian. She
about the faith of Hindu devotees that Lord Ram in her statement states “the period of Valmiki
was born at Ayodhya, our consideration is confined Ramayana is recorded as 300 BC - 200 BC”.
to only a limited submission as to whether site of Various scholars and others date the Valmiki
disputed structure where Babri Masjid was Ramayana to much older period but it is not
constructed is the place of birth of Lord Ram or necessary to dwell in the said question since for our
not. It will be necessary to consider the evidence purpose, it is sufficient that Valmiki Ramayana was
led by the parties in respect of above aspect only. composed in an era Before Christ.

Page 30 40. Valmiki Ramayan, Balakand, Canto XVIII

Shlokas 8 to 12 refers to birth of Lord Ram with
Period earlier to 1528 A.D. 38. Religious faith of a planetary
person is formed on traditions, religious scriptures
and practices. Constitution Bench of this Court Page 32
speaking through Justice B.K. Mukherjea in The
situation. The above Shlokas depict that Lord of
Commissioner, Hindu Religious Endowments,
the Universe, “Vishnu” was born as son of
Madras Vs. Sri Lakshmindra Thirtha Swamiar of
Kaushalya. Valmiki Ramayana contains ample
Sri Shirur Mutt, AIR 1954 SC 282 held that
description of birth of Lord Ram as incarnation of
religion is certainly a matter of faith with
Vishnu, as son of Dasratha and Kaushalya at
individuals or communities, in paragraph 17,
Ayodhya. Shlok 10 tells about birth of Lord Ram
following has been observed:- “17.
as son of Kaushalya, which is extracted as below:-
XXXXXXXXXXXXXXX Religion is certainly a
प्रो�माने जगन्नाथं सव�लोकनम�ृ तम् ।
matter of faith with individuals or communities and
कौस�ाजनयद् रामं िद�ल�णसं युतम् ॥
it is not necessarily theistic. There are well known
(Balakanda 18.10) Kaushalya gave birth to a son
religions in India like Buddhism and Jainism which
who was the Lord of the whole world. He was a
do not believe in God or in any Intelligent First
person adored by all the people. He was invested
Cause. A religion undoubtedly has its basis in a
with divine symptoms. It was not birth of an
system of beliefs or doctrines which are regarded
ordinary man. Ayodhya was blessed with the
by those who profess that religion as conducive to
arrival of the Lord of the whole world, even then
their spiritual well being, but it would not be
Aligarh Historians say that Ayodhya was never
correct to say that religion is nothing else but a
sacrosanct because of the birth of Rama.
doctrine or belief. A religion may not only lay
down a code of ethical rules for its followers to 41. The Epic, thus, associate the birth of Lord Ram
accept, it might prescribe rituals and observances, with Ayodhya. It is, however, true that Valmiki
ceremonies and modes of worship which are Ramayana does not gives any description of place

552
of birth except that Lord Ram was born to penance or sacrifices or undertaking pilgrimages to
Kaushalya at Ayodhya in the Palace of King holy spots. On the Navami day the man should
Dasratha. The next religious text, which is referred observe the holy vow. By the power of the holy
to and relied by plaintiff of Suit No.5 and other bath and charitable gifts, he is liberated from the
Hindu Parties is bondage of births. क�पलागोसहस्रा�ण यो
ददा�त �दने �दन।े तत्फलं समवाप्नो�त
Page 33 जन्मभूमे: प्रदशनर्ात् ॥22॥ आश्रमे वसतां पु ं सां
तापसानां च यत् फलम् । राजसूयसहस्रा�ण
Skanda Purana. In Skanda Purana, reliance has
प्र�तवषार्िग्नहोत्रत:॥23॥
been placed on Ayodhya Mahatmya of
Vaisnavakhanda. The above Ayodhya Mahatmya By visiting the place of birth, one attains that
of Vaisnavakhanda of Skanda Purana has been benefit which is obtained by
filed as Ext. 93 in Suit No.5. The Skanda Purana
has been translated into English by Dr. G.V. Tagare Page 35
published from Motilal Banarasidass Publishers
Private Limited, Delhi, which shall also be referred the person who gives thousands of tawnycoloured
to while considering the relevant versus of Skanda cows everyday. By seeing the place of birth, one
Purana. Book II of Skanda Purana is attains the merit of ascetics performing penance in
Vaisnavakhanda. Different sections of hermitage, of thousands of Rajasuya sacrifices and
Vaisnavakhanda deals with Mahatmya of different Agnihotra sacrifices performed every year.
subjects. Section VII deals with Vaisakhamasa- �नयमस्थ ंनरं दृष्ट् वा जन्मस्थाने �वशे षत:।
Mahatmya, Section VIII deals with Ayodhya- माता�पत्रोगु रूर्णाञ्च भिक्तम ु द्वहतां सताम् ॥24॥
Mahatmya and Section IX deals with Vasudeva- तत्फलं समवाप्नो�त जन्मभूमे: प्रदशनर्ात् ॥25॥
Mahatmya. Skandamahapuranam was published (Adhyaya 10, p.293R.) By observing sacred rites,
by Khemraj Shrikrishnadas. (Ext. 93) published by particularly at the place of birth, he obtains the
Shri Venkateshwar Steam Press, Mumbai. merit of the holy men endowed with devotion to
Translation of Dr. G.V. Tagare is of the published their mother and father as well as preceptors.” 42.
Skanda Purana from Shri Venkateshwar Steam The above Shlokas describes the location of Ram
Press, Mumbai. Chapter X of Ayodhya-Mahatmya Janma Asthan. Legends to identify the Ram Janma
contains 87 Shlokas. M/s. Khemraj Shrikrishnadas, Asthan is mentioned in the Shlokas, which is
proprietor, Shri Venkateshwar Steam Press, situated to the east of Vighnesvara to the north of
Mumbai reprinted by Nag Publishers, New Delhi. Vasistha and to the west of Laumasa. During
Shlokas 18 to 25, which are relevant are as arguments, Shri P.N. Mishra, learned counsel had
follows:- referred to Srimad Skandapuranam, whether the
above legends mentioned in the Ayodhya
Page 34 Mahatmya can lead to verification of Ram Janma
Bhumi is a contention between parties where both
तस्मात् स्थानत ऐशाने रामजन्म प्रवततर्े। the parties have taken divergent stand. Learned
जन्मस्थान�मदं प्रोक्त ंमो�ा�दफलसाधनम्।। counsel appearing for Hindu Parties submits that
18।। �वघ्ने श्वरात् पूवभर्ागे वा�सष्ठादु�रे तथा। the present place where Ram Janma Bhumi is
लौमशात् पिश्चमे भागे जन्मस्थान ंततः स्मृ तम॥19॥ claimed is the same as has been

To the north-east of that spot is the place of the Page 36

birth of Rama. This holy spot of the birth is said to
be the means of achieving salvation etc. It is said described in Ayodhya Mahatmya, which is the faith
that the place of birth is situated to the east of and belief carried by lakhs of Hindus from ancient
Vighnesvara, the north of Vasistha and to the west time till date. In the oral evidence led by both the
of Laumasa. यद् दृष्द्वा च मनु ष्यस्य गभवर्ासजयो parties, the witnesses have deposed proving the
भवते ् । �वना दाने न तपसा �वना तीथ��वनर्ा legends mentioned in Ayodhya Mahatmya and they
मखै :॥20॥ नवमी�दवसे प्राप्ते व्रतधार� �ह deposed that the place which is claimed as Ram
मानव:। स्नानदानप्रभावणे मु च्यते जन्मबन्धनात् ॥21॥ Janma Bhumi by the Hindus is Ram Janma Asthan
Only by visiting it a man can get rid of staying as per description given in Ayodhya Mahatmya.
(frequently) in a womb (i.e. rebirth). There is no The belief and faith of Hindus that place of Ram
need for making charitable gifts, performing Janma Bhumi as is worshipped on date is the place

553
of worship, which is being spoken through ancient in the press established by Shri Krishnadasatmaj
scriptures and lakhs of Hindus are carrying that Kshemraj Shresthi in which the birthplace of Lord
belief from ancient period. O.P.W.1 Mahant Ram Shri Rama has been clearly described. The
Chandra Das Digamber, appeared as witness for photocopy of the cover page and the photocopy of
plaintiff in Suit No.5, he stated that birth of Lord Shloka Nos. 1 to 25 on page No.292 of chapter 10
Ram at Ayodhya is proved by the descriptions in of this book is enclosed with this affidavit as
our Vedas, Upnishads, Smhitas, Smritis etc. The enclosure1 which is the true photocopy of the
witnesses specifically referred to Ayodhya- original book.”
Mahatmya of Skanda Purana and state that birth
place of Lord Ram is the sanctum sanctorum, i.e., 45. The witness was not put to any cross-
the disputed site where Ram Lalla is sitting at examination regarding non-existence of legends to
present. The statement of O.P.W.1 has been identify Ram Janma Bhumi. Mahant Ram Vilas
referred to and has been extensively relied by Das Vedanti, DW-2/3 in his examination-in-chief
Justice Sudhir Agarwal in his judgment. Following has also relied on Ayodhya Mahatmya,
is his statement Vaisnavakhanda, Skanda Purana in paragraph 24.
He states as under:- “24. That, Ayodhya
Page 37 Mahatamya has been described in Vaishnav-
volume of Skand Puran, famous book of Hindus.
where he relied on Ayodhya-Mahatmya of Skanda Disputed land has been explicitly described as a
Purana:- “It is the same Ayodhya, which is the birthplace of God Sri Rama in it. Relevant lines of
present site. Lord Rama was born at this place. Vaishnav Volume of Ayodhya Mahatamiya are as
While giving the boundary in its behalf, there is under:- “Vedvyas describing the importance of
clear reference in all the above mentioned Hindu Ayodhya has written in Vaishnav Volume of Skand
treatises. The paper No.107C/75 is before me. It Puran that one should make darshan of Ayodhya
contains clear mention in this behalf in the with respect – devotion for the fulfilment of all
Ayodhya Mahatmya under the Skanda Purana. The desire. One should, visit the Ayodhya on the
birthplace of Lord Rama and the sanctum
sanctorum are the disputed site, where Ramlala is Page 39
present at present.” (E.T.C.)
third Navratra, chanting bhazans in the month of
43. O.P.W.16 Jagadguru Ramanandacharya Swami Chaitra. Yatra of Shri Ram Navami in Ayodhya
Rambhadracharya states in his statement that commence from the third Navratra of Chaitra
disputed site is a Ram Janma Bhumi, which is month. This yatra is recognized for obtaining
being so believed from time immemorial by faith divine and progeny and pleasure. The scene with
and tradition of Hindus. In his statement, he various types of music and dance is alluring and
states:- “According to my studies and knowledge, one is protected by it, there is no doubt in it. High
the Ayodhya situated disputed site is Sri ascetic, devotee person lives in the western side of
Ramjanmbhumi, which has been recognised as the Ramjanambhoomi, the land known as Pindarak.
birthplace of Lord Rama by followers of Hinduism The land worshipable with flowers etc. Men get
from time immemorial on basis of faith, tradition skill from this pooja. People perform pooja with
and belief and the said place has been continuously due procedure. Worship of Pindarak should be
worshiped. “(E.T.C.) done after taking bath in Saryu River. Sinful person
should do its pooja for keeping the lust of the world
44. In his examination-in-chief Jagadguru away during holy nakshtra of Navratras. Worship
Ramanandacharya Swami Rambhadracharya has of God Ganesh is performed in the western side for
also stated that in Ayodhya-Mahatmya birthplace removing obstacles. Ramjanambhoomi is situated
of Lord Shri Ram has been clearly described. at northeastern corner. This land which provides
Paragraph 25 of the salvation is called Janambhoomi or Janamsthan.
Vashishta Kund is in the east of Vigneshwari.
Page 38
Ramjanambhoomi is in the north side of Vasistha
examination-in chief is as follows:- “25. I am Kund and it becomes clear from the word that
familiar with the Ayodhya Mahatmya of the Ramjanambhoomi is in the north of Vasistha Kund.
Vaishnav Khand of Skand Puran published in 1966

554
One should meditate Janamsthan in the western in Skand Puran and proves the then geographical
part of Lomas Ashram.” situation.” 48. With regard to paragraph 36 of his
examination-inchief witness was cross-examined in
46. Swami Avimuktswaranand Sarswati, DW20/2 which crossexamination, he stated that he had
in his statement has referred to and relied on darshan of Ram Janma Bhumi following the
Ayodhya Mahatmya of Skanda Purana in his legends in Ayodhya Mahatmya. Referring to stone
examination-in-chief fixing by Shri Edward in British Rule (1901-1902),
he submits that he has seen stone fixed by legends
Page 40
at Bara Sthan, Ram Janma Bhumi, Pindarak,
in paragraph 35. He stated that “Ayodhya is a holy Lomash, Vighnesh and Vashishtkund. He further
place as was described in the Book Ayodhya had stated that the stone at Lomash Ashram was
Mahatmya”. This book contains “the details about fixed in the east of Ram Janma Bhumi Mandir. In
the Ram Janma Bhumi, but did not mention about his cross-examination, he states following:-
any mosque”. The witness was cross-examined
Page 42
with regard to his statement made in paragraph 35.
He in his cross-examination has said that he has “I have seen five-six stone boards. These stone
seen Bara Sthan, Nageshwar Nath Temple, Lomash boards were fixed at “Bara Sthan”, Ram Janam
Rishi hermitage, Vighnesh Pindarak and Vashishta Bhoomi, Pindarak, Lomash, Vighnesh and
Kund. In his cross-examination, he states:- Vashishtkund and Vighneshwara respectively. I
“Learned advocate cross examining the witness have seen these stone in 2001 or 2002. I have seen
draw the attention of witness towards Para-35 of these stones together in 2001 or 2002. I have seen
his examination in chief affidavit. Witness in reply these stones regularly whenever I visited there.
to a question said that darshan of Shri RamJanam Stone at Lomash Ashram was fixed in the east of
Bhoomi Temple was referred therein. From “Other east north corner of the Mandir. This stone was in
Temples” referred in this para. I mean the eastern side on the way back from Janam
Hnaumangarhi and Kanak Bhawan. Besides I have Bhoomi. Stone at Pindarak, is in the northern side
seen Bara Sthan, Nageshwar Nath Temple, Lomash of the Janam Bhoomi. There is a Sharma Ka
Rishi hermitage, Vighnesh Pindarak and Vashishta Mandir located near this stone. Stone at Vighnesh
Kund. Vighnesh and Pindarak are not temples. was adjacent to Pindarak. This stone was at a
These are the name of places. Only a large piece of height of four to five feet from the ground level and
stones are there. I have in Para-35 of my buried in to ground up to two to two and half feet
examination in chief affidavit stated that I have in depth. These stones were two to four feet in
visited Ayodhya on a number of times. During thickness. I do not remember as which number
these visits, I had taken darshan for a number of written on which stones. Stone at Vighneswara
times, but not during every visit.” was in the western side of Janam Bhoomi and at
some distance from Vashishta Kund. I have visited
47. In his examination-in-chief, he has stated about
the Vashistha Kund. It is, perhaps at the south west
visit to Ayodhya following the procedure given in
corner of Janam Bhoomi. It is at a distance of
Page 41 about two to two and half hundred yards. I have
seen this stone during my first visit and also during
Skanda Purana and having darshan accordingly. my last visit. The material engraved thereon was in
He also referred in his examination-in-chief that he both the languages i.e., English and Hindi.” 49.
got great assistance from the stone boards fixed by Witnesses, thus, clearly proves the location of Ram
Shri Edward during the time of British Rule. In Janma Bhumi as per legends given in Ayodhya
paragraph 36 of the examination-in-chief, he stated Mahatmya of Skanda Purana. Another witness
as follows:- “36. That, I have also once visited DW3/7, Mahant Ramji Das in his cross-
Ayodhya following the procedure given in Skand examination has relied on Ayodhya Mahatmya,
Puran and took darshan of Shri RamJanam which mentioned about the birthplace. He
Bhoomi. During that visit, I got great assistance
from the stone boards fixed by a higher officer Shri Page 43
Edward, during the time of British Rule, which
were fixed in accordance with the serial prescribed

555
testifies the situation of Ram Janma Asthan as per not see the hermitage of seer Vashishtha, but
Ayodhya Mahatmya. DW3/14 Jagat Guru people told me about him”. (ETC)
Ramanandacharya Swami Haryacharya. In his
examination-in-chief, he placed reliance on 51. One Dr. Sita Ram Rai, PW-28 also appeared
Ayodhya Mahatmya of Skanda Purana. In his for plaintiff in Suit No.4, who was cross-examined
examination-in-chief, he states that Lomas Rishi with regard to Skanda Purana. In his statement, he
Ashram is in the east of the present Shri Ram states that it will not be correct to say that in
Janma Bhumi. He further states that at place of Ayodhya
Lomas Rishi Ashram, now, there is a Ramgulella
Page 45
Mandir and a stone in the name of Shri Lomasji. In
paragraph 31 of the examination-in-chief, he Mahatmya, the boundary of Ram Janma Bhumi and
states:- “31. Lomas Rishi Ashram is in the east of its position has been given. He, however, states
the present Shri Ramjanm Bhoomi Mandir, about that it is true that legends Pindarak, Vighneshwar,
which a case is subjudice. Where there is a Vashishth and Lomesh are present. He stated in his
Ramgulella Mandir, there is a stone in the name of statement that Couplets in Ayodhya Mahatmya
Shri Lomasji. Bighneshwar Bhagwan is in the west indicates about the visit towards Janma Asthan and
side of Ram Janm Bhoomi Mandir, which is in the not the clarity of its boundaries. He stated
west side of Vasisth Bhawan Mandir. The proof is following in his crossexamination:- “In my view it
enclosed at list ‘A’ of an affidavit.” 50. It is will not be correct to say that in Ayodhya
further relevant to notice that witness who appeared Mahatamya Chapter the boundary of Ram Janam
on behalf of the plaintiff of Suit No.4 were also Bhoomi and its position has been given. On this
cross-examined in reference to Ayodhya Mahatmya point the learned advocate drew attention of the
of Skanda Purana. PW13, Suresh Chandra Mishra, witness to couplet 14 to 25 of Paper No.107C 1/75
appeared on behalf of plaintiff of Suit No.4 is a (On this the advocate of Plaintiff Shri Zaffaryab
historian. PW15, Sushil Srivastav appeared as Jilani raised objection that the paper has not been
historian proved and, as such permission to ask question
thereon should not be given. (Reply to it will be
Page 44
given later on). After reading the above couplet the
on behalf of Muslim Parties, plaintiff of Suit No.4 witness said that I have understood its contents and
in his cross-examination with regard to Ayodhya said that boundary of Ram Janam Bhoomi has not
Mahatmya, he shows his agreement about what is been clearly demarcated in it and afterwards said
mentioned in the Ayodhya Mahatmya about that boundary has not been given in it. The learned
birthplace of Lord Ram. In his cross-examination, advocate again made the witness to read line 18-19
he states, following:- “It is written about birth of of the couplet and after reading it the witness said
Rama in Ayodhya Mahatmya. I agree with what is that the boundary of Ram Janam Bhoomi has not
mentioned in Ayodhya Mahatmya about the birth been clearly demarcated. There is no mention of
place of Rama. The hermitage of sage Lomash has all the four directions, which is necessary for the
found mention in this book, that is, it is described boundary. It is true that in the couplets Pindarak,
therein. It also describes Vighneshwar sthan. The Vighneshwar, Vashishth and Lomesh are
hermitage of seer Vashishtha has also found mentioned in the above couplets. After listening
description in Ayodhya Mahatmya”. (ETC) From first line of
references about the hermitages of sage Lomash
Page 46
and seer Vashishtha in Ayodhya Mahatmya, the
birthplace of Rama has been located. As per the 18th couplet from the learned advocate cross-
Ayodhya Mahatmya, Ram Janam Sthan is situated examining, the witness replied that from this place
West of Lomash Rishi Ashram, east of the on has to go towards, Eshan direction for Janam
Vighneshwar temple and north of Vashishtha Muni Bhoomi. The meaning of “Pravartate” is that one
Ashram. I did not come across the Vighneshwar who goes. The meaning of ‘Vighneshwar purva
temple; rather, I saw a pillar with the word bhage’ is that on the eastern side of Vighneshwar.
“Vighneshwar” engraved thereon. I did not come ‘Vashishthth uttare’ means on the Northern side of
across the hermitage of sage Lomash. I also did Vashishth. ‘Lomsath Paschime’ means on the
Western side of Lomesh. ‘Janmasthanam tathati”

556
means from there to Janmasthan. What I have said study shows neither any evidence of the existence
above indicates about the visit towards of a temple on the site of Babri Masjid nor of the
Janamasthan and not the clarity of its boundary.” destruction of any other structure there prior to the
construction of the mosque.”
52. According to the above witness, clear
boundaries have not been given of the Ram Janma 54. The above observations in the report that the
Bhumi but indications have been given about the absence of any such reference to ancient Sanskrit
legends situated on eastern, western and northern text makes it very doubtful that belief in Ram
side and how to reach the Ram Janma Bhumi. Janma Asthan is of such respectable antiquity as is
Accordingly, the above are sufficient indication to being made out. The epic Valmiki Ramayana as
locate the Ram Janma Bhumi. Boundaries as noticed above which was a composition before the
required to refer in a sale or lease documents were start of Christian era states Ayodhya as birth of
not contemplated to be given in such ancient Text Lord Ram at Ayodhya at King Dasratha’s palace.
as Ayodhya Mahatmya of Skanda Purana. As The report jumped to the conclusion that it is even
noted above, Dr. Rajeev Dhavan refuting the doubtful that belief is earlier than the late
identification, the marks given in Ayodhya Eighteenth Century. Further observations were
Mahatmya of Skanda Purana has placed heavy made in the report regarding period of composition
reliance on the Historian’s reports to the Nation of Skanda Purana, the report comes to the
dated 13.05.1991. conclusion that Ayodhya Mahatmya has to be of
period towards the end of Eighteenth Century or
Page 47 the beginning of Nineteenth Century. It is
necessary to consider as to whether
Dr. Rajeev Dhavan refuting the arguments based
on the locations of Ram Janma Bhumi as given in Page 49
Ayodhya Mahatmya of Skanda Purana rely on the
Historian Reports to Nation. Arguments made by observations made in the report that Ayodhya
Shri P.N. Mishra, relying on book Ayodhya by Mahatmya of the Skanda Purana is composition of
Hans Bakker has been refuted by making following end of Eighteenth Century or the beginning of
submissions:- (a) Hans Bakker proceeds on the Nineteenth Century or it belongs to an earlier
presumption that Ayodhya is not a real city but a period.
figment of the poet’s imagination;
55. P.V. Kane in History of Dharmasastra, Volume
(b) He proceeds by equating Ayodhya to the city of 5, Part II published by Bhandarkar Oriental
Saketa; Research Institute, Poona (1962) has elaborately
dealt with Puranas and their date or period. P.V.
(c) Even while mapping the birthplace from Kane has also referred to Skanda Purana in VII
Ayodhya Mahatmya, he cites considerable Khand as published from Venkateshwar Press,
difficulties and ultimately states that Babri Masjid referred to above. After elaborate discussion P.V.
is built at the birthplace as is confirmed by local Kane arrives at the conclusion that Skanda Purana
belief. cannot be placed earlier than Seventh Century and
not later than Ninth Century A.D. Following is the
(d) Even the impugned judgment records that Hans
discussion on Skanda Purana and its dating by P.V.
Bakker proceeds on the basis of conjectures
Kane in “History of Dharamasastra”:- “Skanda —
without assigning any reason.“
This is the most extensive of Puranas and poses
53. The Historian’s Report to Nation, which is Ext. perplexing problems. It is found in two forms, one
No.62 in Suit No.4 may be first considered. Report being divided into seven khandas, viz. Mahesvara,
referred to as a Historian Report to the Nation was Vaisnava, Brahma, Kasi, Avantya, Nagara and
their comments on the stand of Vishva Hindu Prabhasa, the other being divided into six samhitas,
Parishad viz. Sanatkumara, Suta, Sankari, Vaisnavi, Brahmi
and Saura. The Skanda in seven khandas has been
Page 48 published by the Venk. Press and the Sutasamhita
with the commentary of Madhavacarya has been
in the Ayodhya dispute. The four Historian in their
letter to the Government of India opined “Our Page 50

557
published by the Anan. Press, Poona. The extent of Musavi in her statement has stated that
the Skanda is variously given as 81000 slokas, at geographical local of Ramkot found description in
100000 slokas (vide PRHR p. 158), at 86000 (in the Skanda Purana. She clearly stated that Skanda
PRHR p. 159). The god Skanda does not figure Purana belongs to Ninth Century A.D. Following is
prominently in this Purana named after him. The her statement in above regard:- “I have read about a
Skanda is named in the Padma V. 59. 2 Skanda I. 2. place called Ramkot in Ayodhya. The
6. 79 is almost in the same words as Kiratarjuniya geographical location of Ramkot finds description
(II. 30 'sahasa vidadhita na kriyam'). Skanda, in Skanda Purana. But it is not clear. It is true that
Kasikhanda 24 (8 ff) is full of Slesa and a certain place in Ayodhya is known by the name
Parisankhya in the style of Bana as in 'yatra ksa- of Ramkot from the end of 16th century. Skanda
panaka eva drsyante maladharinah' (verse 21) or Purana is attributed to, that is, stated to be
'vibhramoyatra narlsu na vidvatsu ca karhicit’ belonging to the 9th century.” (E.T.C.)
(verse 9). Natyaveda and Artha-sastras are
mentioned in Kasikhanda (Purvardha 7. 4-5), Page 52
Dhan- vantari and Caraka on medicine are
57. In above view of the matter, the opinion of four
mentioned in Kasikhanda (Purvardha 1.71); the
Historians in their report that Ayodhya Mahatmya
word Jhotinga occurs in Kasikhanda 72.74
of Skanda Purana was prepared towards the end of
(Jhotinga raksasah krurah). Skanda is quoted on
Eighteenth Century or the beginning of Nineteenth
topics of Dharmasastra in early commentaries and
Century cannot be accepted. It is further relevant
digests. The Mit. on Yaj. II. 290 mentions it in
to notice that Ayodhya Mahatmya of the Skanda
connection with the status of vesyas (courtezans).
Purana, the witnesses examined in Suit No.5 on
Kalpataru on vrata quotes only 15 verses from it,
behalf of the Hindu Parties as well as other
Kalpataru on tirtha (pp. 36-39, 32, 46, 130-135)
witnesses examined on behalf of the Hindu parties
quotes 92 verses from it, on dana only 44, on
were cross-examined on various Shlokas of
niyatakala 63 verses, 18 verses on Rajadharma (on
Ayodhya Mahatmya of Skanda purana but not even
Kaumudimahotsava), only 4 in sraddhakanda and 3
a suggestion was made to any of the witnesses that
in grhasthakanda. Apararka quotes only 19 verses
Ayodhya Mahatmya in Skanda Purana was
from it; one quotation indicates Tantrik influence
composed in end of Eighteenth Century or
(vide note). The Danasagara cites 48 verses on
beginning of Nineteenth Century. Thus, the
dana from it and the Sm. C. only 23 in all.
opinion of the Historian’s report that Skanda
Considering the colossal figure of slokas in the
Purana does not give support to any belief in Ram
Skanda it must be said that it is rather sparingly
Janma Asthan extending since long is
quoted in the Dharmasastra works. A verse in it
unacceptable.
seems to echo the very words of Kalidasa and
quotes the view of Devala. In such a huge work 58. Another mistake which has crept in the
interpolations could easily be made. So it is Historian’s report is that while recording the
difficult to assign a definite date to it. A ms. of the legends mentioned in the Ayodhya Mahatmya, the
Skanda in the Nepal Durbar Library is report refers to “Laumasa” with present Rin
Mochan Ghat. With regard to above
Page 51
Page 53
written in characters which belong to the 7th
century A.D. according to Haraprasad Shastri (vide report states following:- “According to local
Cat. of Nepal Palm-leaf mss. p. LII.) It would be Hindus beliefs Laumasa or the place of Laumasa is
not far from the truth to say that the Skanda cannot identical with the Rin Mochan Ghat.”
be placed earlier than the 7th century A.D. and not
later than 9th century A.D. on the evidence so far 59. The above conclusion was drawn by the report
available.” referring to local Hindus beliefs whereas existence
of Laumasa and its situation and identification is
56. There is no need of any further discussion well established since the year 1901-02, where
regarding period of composition of Skanda Purana stone pillar has been placed, has been proved by
in view of evidence, which was led on behalf of the witnesses, who appeared on behalf of plaintiff
plaintiff of Suit No.4 itself. PW20 Prof. Shirin in Suit No.5. The statement of Swami

558
Avimuktswaranand Sarswati has already been and research work but reflection of other's opinion,
referred to. Due to the above error, the placement in our view, shall not qualify to be considered
of Ram Janma Bhumi by the Four Historian has relevant under Section 45 of the Evidence Act as
been faulted. The identification of Lomas by four well as the law laid down by the Apex Court in
Historians as Rin Mochan Ghat is palpably wrong. State of Himachal Pradesh Vs. Jai Lal (supra).
In Suit No. 2 of 1950, a site plan & map were 3623. Normally, the Court does not make adverse
prepared by Shiv Shankar Lal, the Court comments on the deposition of witness and suffice
Commissioner on 01.04.1950, which has been it to consider whether it is credible or not but we
relied by the High Court and not questioned by find it difficult to resist ourselves in this particular
anyone. In the above site plan, which has been case considering the sensitivity and the nature of
printed in the judgment of Justice S.U. Khan at dispute and also the reckless and irresponsible kind
Page 30 of Volume I and as Appendix 2C of of statements, and the material got published by the
judgment of Justice Sudhir Agarwal mentions that persons claiming to be Expert Historian,
‘Lomas’ as Archaeologist etc. without making any proper
investigation, research or study in the subject.
Page 54 3624. This is really startling. It not only surprises
us but we are puzzled. Such kind of statements to
South Eastern corner of Janma Bhumi, which
public at large causes more confusion than clear the
clearly negate the placement of Lomas by four
things. Instead of helping in making a cordial
Historians as Rin Mochan Ghat on the bank of
atmosphere it tends to create more complications,
Saryu. There are few other observations, which
conflict and controversy. Such people should
have been made in the report, which cannot be
refrain from making such statements or written
approved. The report mentioned that Skanda
work. They must be
Purana refers to Swargdwar Tirth on which 100
verses have been devoted to the description of Page 56
Swargdwar whereas only 8 verses have been
devoted to Janma Asthan, which means that extremely careful and cautious before making any
Swargdwar Tirth was more important than Janma statement in public on such issues. 3625. The
Asthan. Whether describing Janma Asthan in 8 people believe that something, which has been said
verses, its description and location shall lose its by a learned, well studied person, would not be
importance? Answer is obviously no. It may be without any basis. Normally they accept it as a
further noticed that whole report is nothing but correct statement of fact and affairs. Normally,
objection to the case of the Vishwa Hindu Parishad these persons do not find a stage where their
as has been mentioned in the report in very statement can be scrutinized by other experts like a
beginning. The report, thus, has been prepared as cross-examination in a Court of law. In legal
the counter to the Vishwa Hindu Parishad case, terminology, we can say that these statements are
which itself suggests that the four Historians had normally ex parte and unilateral. But that does not
not treated the entire subject dispassionately and give a license to such persons to make statements
objectively. whatsoever without shouldering responsibility and
accountability for its authenticity. One cannot say
60. Justice Sudhir Agarwal in the impugned that though I had made a statement but I am not
judgment has elaborately dealt with the above responsible for its authenticity since it is not based
reports by four on my study or research but what I have learnt
from others that I have uttered. No one, particularly
Page 55
when he claims to be an expert on the subject, a
Historians and found it unworthy of reliance. Very proclaimed or self styled expert in a History etc. or
strong observations have also been made with the facts or events can express some opinion unless
regard to the report of Historian as well as of some he/she is fully satisfied after his/her own research
witnesses in following words:- “3622. We may and study that he/she is also of the same view and
mention here that though the said report claims to intend to make the same statement with reasons.”
have been written by four persons but in fact it was
61. One more aspect of the report needs to be
not signed by Sri D.N.Jha. The opinion of an
noticed. In the report, the refence to excavation
alleged expert, which is not based on her own study

559
made by Prof. B.B. Lal (of Archaeological Survey of Ayodhya Mahatmya received from different
of India) to identify sites of Ramayana have been sources. He has compared the manuscripts, one
made. The said excavation was conducted by Shri received from Bodleain Library, Oxford, London,
B.B. Lal in 1975-76. Vrindawan Research Institute, Oriental Institute
Baroda and Research Institute, Jodhpur. After
Page 57 elaborate comparison and considering all relevant

Towards south of the disputed structure, certain Page 59

trench were excavated and Shri B.B. Lal opined
that certain pillar bases were found sustaining aspects, Hans Bakker in Chapter XXI has opined
pillars and show a structure in the south of Babri that original location of the Janma Asthan is
Masjid. In the report, after referring to excavation comparatively certain since it seems to be attested
by Shri B.B. Lal, the report concludes:- “Finally, by the location. Following statement is made by
there is nothing to show that the pillar bases Bakker:- “Notwithstanding all the difficulties
existing at a distance of about 60 ft to the south of discussed above, the original location of the
the Baburi Masjid structure are in alignment with Janmasthana temple is comparatively certain since
the pillars used in the Baburi Masjid. In fact no it seems to be attested by the location of the
importance can be attached to the structure mosque built by Babur, in the building of which
postulated on the strength of the pillar bases. It materials of a previous Hindu temple were used
could be a small verandah, which may have been and are still visible. The mosque is believed by
used either as an animal shed, or just for living general consensus to occupy the site of the
purposes. Such structures are found in that area Janmasthana. After the destruction of the original
even now.” temple a new Janmasthana temple was built on the
north side of the mosque separated from it by a
62. The excavation of disputed site leaving the area street.” 64. As far as maps prepared after
on which makeshift structure was situate was discussing the locations given in Ayodhya
carried by Archaeological Survey of India (A.S.I.) Mahatmya, different versions of Ayodhya
under the orders of the High Court dated Mahatamya including one contained in the
05.03.2003. The detailed report by A.S.I. has been published version from Venkateshwar Press,
submitted which shall be separately considered. Mumbai, at the end, Hans Bakker concludes that
The opinion formed by four Historians on the basis the five maps containing the scared topography of
of certain excavation made by Shri B.B. Lal in the Ayodhya and its ksetra according to the tradition of
year 1975-76 has now become not much relevant in Ayodhya Mahatmya based on survey carried out in
view of elaborate exercises conducted the autumn of 1980 and spring of 1983. In the end,
he states following:-
Page 58
Page 60
by A.S.I. under the orders of High Court. Hence
the Historian’s report cannot be relied due to above “The five maps enclosed present the sacred
subsequent massive excavation conducted by A.S.I. topography of Ayodhya and its ksetra according to
63. The submissions have been made by Dr. the tradition of the Ayodhyamahatmya based on
Dhavan in reference to book on Ayodhya by Hans surveys carried out in the autumn of 1980 and
Bakker. The book Ayodhya by Hans Bakker is a spring of 1983. It was necessary to make a
thesis submitted to University of Groningen by thorough revision of sheet 63 J/1 of the 1 : 50,000
Dutch Scholar H.T. Bakker in 1984. The book has series with regard to the topography of Ayodhya
been published in 1986, which contains details town (Map III, scale 1 : 10,000).”
which is in three parts. Three maps were also
prepared of the Ayodhya including place like Ram 65. To support his submission that Ayodhya is not
Janma Bhumi, Babri Masjid and other legends of a real city but a figment of the poet’s imagination
importance. Hans Bakker in his book has as was observed by Hans Bakker himself,
elaborately considered the Ayodhya Mahatamya, following passage from the book is referred by Dr.
which includes consideration of Ayodhya Dhavan:- “If it has thus become clear that the town
Mahatmya published by Venkateshwar Press, of Ayodhya only figures in literature that is
Mumbai as noted above as well as few manuscripts predominantly legendary in character, the question

560
of the historicity of this town may well be raised. beginning of the 8th century, describes Ayodhya as
To settle this question we should first concentrate a garrison town.”
on the early historical period, say up to the second
century of the Christian era. The name ‘Ayodhya’ 68. Thus, identity of Ayodhya has been attested
is not attested by any archaeological or and corroborated by Sanskrit Scriptures and the
epigraphical evidence relating to this period.” corroboration from the later Gupta period. Thus,
66. The above observation occurs in Chapter the earlier observation made was only to the effect
dealing with the subject on “History of that Ayodhya is not attested by any epic literature,
Saketa/Ayodhya from 600 BC to AD 1000”. After but once it was identified by author himself, the
making the aforesaid remarks, the conclusion earlier observation loses its importance. As far as
which was drawn by Hans Bakker is as follows:- observation of Bakker in which he equated the
“Hence we conclude that the information Ayodhya to the city of Saketa, no exception can be
taken. Saketa and Ayodhya has been used as
Page 61 synonyms in other scriptures as well as historians.
With regard to map of birthplace after considering
about Ayodhya in early Epic literature does not the entire materials, Hans Bakker attests the
furnish us with historical data concerning an old location of birthplace. The conclusions arrived by
city of that name, let alone of the site AY.” Hans Bakker cannot be said to be based on
surmises or conjectures. 69. One more aspect
67. Hans Bakker, however, when proceeded to
relevant for the period in question
examine the history, Bakker also considered the
Jains and Baudh’s Scriptures. Bakker subsequently Page 63
held that identity of Ayodhya and Saketa was
started and completed in the age of Guptas. The may be considered. DW2/1-1, Rajinder Singh,
further observations made in the book, which is to appeared as a witness for defendant No.2 in Suit
the following effect:- “The reification of the realm No.4, as a person having interest in the study of
of saga finally resulted in a general religious, cultural and Historical books of Sikh
acknowledgment of the identity of Ayodhya and Cult. In examination-in-chief, he has referred to
Saketa, that is the site AY, a process which was several books about Sikh Cult and history. He also
completed in the age of the Guptas. That the stated in his examination-in-chief that Guru Nanak
identification was not yet universally Devji had sought darshan of Shri Ram Janma
acknowledged during the rule of the early Guptas Bhumi Temple at Ayodhya. The period during
seems to follow from some Purana texts in which which Guru Nanak Devji went to Ayodhya and had
the Gupta rulers are credited with sovereignty over darshan stated to be is 1510-1511 A.D. In
the real Saketa rather than over the marvelous paragraph 11 of examination-in-chief, he states:-
Ayodhya. The identification of Ayodhya with “11. Guru Nanak Devji, after getting the
Saketa during this period is not only attested in the appearance of God on the auspicious day,
Jaina sources but also in Sanskrit saga to wit the Bhadrapad Poornima, 1564-Vikrami = 1507 c.e.
Brahmandapurana 3.54.54 (Cp. Op.cit.3.54.5), and prepared him for going on pilgrimage. Then he
most consistently in Kalidasa’s Raghuvamsa. It is went to Ayodhya via Delhi, Haridwar, Sultanpur
only from the period when the name Ayodhya was etc. Almost 3-4 years have passed in this journey.
used to denote an existing township that we may Similarly Guru Nanak Dev went on pilgrimage to
expect to find corroborative archaeological see Shri Ram Janam Bhoomi Mandir in 1567-1568
evidence. Such testimony is indeed found among Vikrami = 1510-11 Christian era. It is mentioned
the inscriptions of the later Guptas (5th century): an here that invader Babar has not invaded India by
inscription dealing from AD that time.”

Page 62 70. Alongwith his statement, he has annexed

various Janma Sakhies, which records visit of Guru
436 describes the donees of a gift as ‘Brahmins Nanak Devji at Ayodhya and Darshan of Ram
hailing from Ayodhya’. A Gupta inscription of AD Janma Bhumi. Justice Sudhir Agarwal in his
533/4 mentions a nobleman from Ayodhya. The judgment has also referred to
spurious Gaya copperplate inscription of
Samudragupta, probably a fabrication of the Page 64

561
various Janma Sakhies, which were referred to and Lord Ram do support the faith and beliefs of the
relied by the witnesses. Detailed reference of Hindus.
Janma Sakhies, which have been referred and
relied by the witness is mentioned in paragraph 5 of 72. It can, therefore, be held that the faith and
the affidavit. In paragraph 5 of examination-in- belief of Hindus regarding location of birthplace of
chief, he states:- “5. I had studied a number of Lord Ram is from scriptures and sacred religious
ancient books in the form of edited and published books including Valmiki Ramayana and Skanda
books about Sikh Cult and history which include Purana, which faith and beliefs, cannot be held to
“Aadhi Sakhies (1758 Vikrami 1701 Christian era), be groundless. Thus, it is found that in the period
Puratan Janam Sakhi Guru Nanak Devji Ki (1791 prior to 1528 A.D., there was
Vikrami = 1734 Christian era), creation of Bhai
Page 66
Mani Singh (Life-time 1701-1791 Vikrami 1644-
1734 Christian era) “Pothi Janmsakhi: Gyan sufficient religious texts, which led the Hindus to
Ratnawali”, Bhai Bale Wali” (Shri Guru Nanak believe the present site of Ram Janma Bhumi as the
Dev) Janamsakhi” (1940-Vikrami = 1883 Christian birthplace of Lord Ram. Faith and belief
era) creation of Sodhi ManoharDas Meharban (Life regarding Janma Asthan during the period 1528
time 1637-1697 Vikrami = 1580-1640 Christian A.D. to 31.10.1858. 73. During this period, “Sri
era) “Sachkhand Pothi:Janamsakhi Shri Guru Ramacharitmanasa” of Gosvami Tulasidasa was
Nanak Devji, creation of Babu Sukhbasi Ram vedi composed in Samvat 1631 (157475 A.D.). The
(Eighth descendant of Shri Laxmi Chand younger Ramacharitmanasa enjoys a unique place and like
son of Guru Nanak Devji) “Guru Nanak Vansh Valmiki Ramayana is revered, read and respected
Prakash (1886 Vikrami = 1829 Christian era), by Hindus, which has acquired the status of an Epic
creation of Shri Tara Hari Narotam (Life-time in Hindu faith. Gosvami Tulasidasa in BalaKanda
1879-1948 Vikrami = 1822-1891 Christian era) has composed verses, which are spoken through
“Shri Guru Tirath Sangrahi” and famous creation Lord Vishnu. When Brahma appealed to Vishnu to
of Gyani Gyan Sigh “Tawarikh Guru Khaira: Part-I relieve the Devas, Sages, Gandharvas and earth
(1948 Vikrami 1891 Christian era) etc. It is fully from the terror of Demon Ravana (Raavan), Lord
evident from the information gained from these Vishnu said that I will take a human form and born
books that disputed land is a birth place of Shri to Dasaratha and Kausalya in Kosalapuri. After
Ramchanderji and Guru Nanak Dev had sought the Doha 186, Bala-Kanda in following three
darshan of Shri Ram Janam Bhoomi Temple at chaupaiyas (Verses), Lord Vishnu says:- जिन
Ayodhya it is also proved from these books that डरप� मुिन िस� सु रेसा । तु �िह लािग ध�रहउँ
with the passage of time Shri Guru Teg Bahadur नर बे सा ॥ अं स� सिहत मनु ज अवतारा । ले हउँ
and his son Shri Guru Govind Singh have also िदनकर बं स उदारा ॥ १ ॥ “ Fear not, O sages,
sought the darshan Siddhas and Indra (the chief of gods); for your sake
I will assume the form of a human being. In the
Page 65
glorious solar race I shall be born as a
of Shri Ram Janam Bhoomi Mandir at Ayodhya.”
Page 67
71. Janma Sakhies, which have been brought on the
record contains a description of visit of Guru human being alongwith My part manifestations.”
Nanak Devji to Ayodhya, where he had darshan of क�प अिदित महातप की�ा । ित� क�ँ म�
birthplace of Lord Ram. It is true that from the पूरब बर दी�ा ॥ ते दसरथ कौस�ा �पा ।
extracts of Janma Sakhies, which have been कोसलपुरी ं प्रगट नरभूपा ॥ २ ॥ “ The sage
brought on the record, there is no material to Kasyapa and his wife Aditi did severe penance; to
identify the exact place of Ram Janma Bhumi but them I have already vouchsafed a boon. They have
the visit of Guru Nanak Devji to Ayodhya for appeared in the city of Ayodhya as rulers of men in
darshan of Janma Bhumi of Ram is an event, which the form of Dasaratha and Kausalya.” ित� क�
depicted that pilgrims were visiting Ayodhya and गृ ह अवत�रहउँ जाई । रघु कु ल ितलक सो
were having darshan of Janma Bhumi even before चा�रउ भाई ॥ नारद बचन स� सब क�रहउँ । परम
1528 A.D. The visit of Guru Nanak Devji in 1510- स�� समे त अवत�रहउँ ॥ ३ ॥ “ In their
11 A.D. and to have darshan of Janma Bhumi of house I shall take birth in the form of four brothers,
the ornament of Raghu’s line. I shall prove the

562
veracity of all that was uttered by Narada and shall 76. Section 57 of the Evidence Act, enumerate the
descend with my Supreme Energy (पराश��).” facts of which the Court must take judicial notice.
Section 57 insofar as it is relevant for the present
74. The above chaupaiyas does not only refer to case is as follows:- “57. Facts of which Court must
Vishnu taking human form in Avadhpuri, i.e., take judicial notice.—The Court shall take judicial
Ayodhya but the verse specifically mentions that he notice of the following facts:— (1) All laws in
will take human form at the house of Dasaratha and force in the territory of India; xxxxxxxxxxxxx
Kausalya. The above verses do not only refer to
birth of Ram at Ayodhya but points out to “a Page 70
place”, where he will take human form, which is
clearly depicted in the words “tinha ke grha” (in In all these cases, and also on all matters of public
their house of Dasaratha and Kausalya). history, literature, science or art, the Court may
resort for its aid to appropriate books or documents
Page 68 of reference. If the Court is called upon by any
person to take judicial notice of any fact, it may
75. Contesting parties have referred to and relied refuse to do so, unless and until such person
on various Gazetteers, travelogues books relating to produces any such book or document as it may
this period. According to Hindu parties’ relevant consider necessary to enable it to do so.”
books and Gazetteers during the relevant period
amply proves the faith and belief of Hindus in the 77. The definition of facts, which Court must take
Janma Asthan of Lord Ram, which was worshipped judicial notice is not an exhaustive definition.
by Hindus throughout. Dr. Rajeev Dhavan on Phrase “on all matters of public history, literature,
the other hand contends that Gazetteers of period science or art” are wide enough to empower the
prior to 1858 cannot be looked into and Gazetteers court to take into consideration Gazetteers,
prepared under the British Government after 1858 travelogues and books. Gazetteers are nothing but
can be of some assistance. He submits that record of public history. The above provision is
Gazetteers prepared during the regime of East India with a rider that if the Court is called upon by any
Company cannot be relied nor can be called person to take judicial notice of any fact, the Court
Gazetteers. With regard to all travelogues account may refuse to do so until and unless, such person
published in different books, Dr. Dhavan submits produces such book or any document. Both the
that no reliance can be placed on the said accounts parties have cited several judgments of this Court,
given by travellers, since they are only all hearsay where this Court had occasion to consider
and they were only by their account telling stories. admissibility of Gazetteers and other books in
It is necessary to first consider as to whether evidence and the value, which is to be attached on
Gazetteers and travelogues books can be treated as statements contained in Gazetteers, travelogues and
an evidence by Court for considering the issue,
which had arisen before the Court in the suit giving Page 71
rise to appeals in question. The Evidence Act,
books. In Sukhdev Singh Vs. Maharaja Bahadur of
1872 consolidated, defined
Gidhaur, AIR 1951 SC 288, this Court held that
Page 69 Gazetteer is an official document of some value as
it is compiled by experienced officials with great
and amend the law of evidence. The evidence is care. Following observations were made in
defined in interpretation clause, i.e., Section 3. The paragraph 10:- “10. Xxxxxxxxxxxxxxxxxx The
definition of evidence as amended by Act 21 of statement in the District Gazetteer is not
2000 is as follows:- “Evidence”.— “Evidence” necessarily conclusive, but the Gazetteer is an
means and includes— (1) all statements which the official document of some value, as it is compiled
Court permits or requires to be made before it by by experienced officials with great care after
witnesses, in relation to matters of fact under obtaining the facts from official records. As
inquiry, such statements are called oral evidence; Dawson Miller, C.J. has pointed out in Fulbati
(2) all documents including electronic records case, AIR 1923 Patna 423, there are a few
produced for the inspection of the Court, such inaccuracies in the latter part of the statement
documents are called documentary evidence.” quoted above, but so far as the earlier part of it is
concerned, it seems to derive considerable support

563
from the documents to which reference has been dispute in question though it may not be treated as
made.” conclusive evidence. The recitals in the Gazette
with regard to location of temple of Kalika Mataji
78. In Gopal Krishnaji Ketkar Vs. Mahomed Jaffar on the top of the hill was relied. In paragraph 22,
Mahomed Hussein, AIR 1954 SC 5, this Court had following was laid down:- “22.
referred to and relied on the Gazetteer of Bombay. …………………………………..It is seen that the
In paragraph 4, the Court was examining nature of Gazette of the Bombay Presidency, Vol. III
a tomb which belong to Eighteenth Century. In published in 1879 is admissible under Section 35
paragraph 4, this Court Stated:- “4. The shrine has read with Section 81 of the Evidence Act, 1872.
a curious, and in some respects legendary, history. The Gazette is admissible being official record
Its origin is lost in antiquity but the Gazetteer of the evidencing public affairs and the court may
presume their contents as genuine. The statement
Page 72
contained therein can be taken into account to
Bombay Presidency tells us that the tomb is that of discover the historical material contained therein
a Muslim saint who came to India as an Arab and the facts stated therein is evidence under
missionary in the thirteenth century. His fame was Section 45 and the court may in conjunction with
still at its height when the English made their other evidence and circumstance take into
appearance at Kalyan, near where the tomb is consideration in adjudging the dispute in question,
situate, in the year 1780. As they only stayed for though may not be treated as conclusive evidence.
two years, their departure in the year 1782 was The recitals in the Gazette do establish that Kalika
ascribed to the power of the dead saint.” Mataji is on the top of the hill, Mahakali temple
and Bachra Mataji on the right and left to the
79. A Constitution Bench of this Court in Mahant Kalika Mataji. During Mughal rule another
Shri Srinivas Ramanuj Das Vs. Surjanarayan Das
and Another, AIR 1967 SC 256 had occasion to Page 74
consider Puri Gazetteer of O’Malley of 1908. In
Syed Sadar Peer was also installed there, but
the Gazetteer, the history of Emar Math was
Kalika Mataji was the chief temple. Hollies and
addressed. It was contended by the appellant before
Bills are the main worshippers. On full moon of
this Court that Gazetteer cannot be treated as an
Chaitra (April) and Dussehra (in the month of
evidence. The Court held that Gazetteer can be
October), large number of Hindus of all classes
consulted on matters of public history. In
gather there and worship Kalika Mataji, Mahakali
paragraph 26, following was laid down:- “26. It
etc……………………………..”
is urged for the appellant that what is stated in the
Gazetteer cannot be treated as evidence. These 81. In view of the above discussions, the law as
statements in the Gazetteer are not relied on as noted above clearly establish that Court can take
evidence of title but as providing historical material into consideration the Gazetteers under the
and the practice followed by the Math and its head. Evidence Act, 1872, even though, the statement in
The Gazetteer can be consulted on matters of Gazetteers will not be treated as conclusive
public history.” evidence but the presumption of correctness of that
statement is attached to it. The admissibility of
80. This Court in Bala Shankar Maha Shanker
books and travelogues cannot be denied in view of
Bhattjee and Others Vs. Charity Commissioner,
Section 57. Section 81 of the Evidence Act also
Gujarat State,
contemplate for a presumption of genuineness of
Page 73 every document purporting to be any official
Gazette or the Government Gazette. Section 81 of
1995 Supp. (1) SCC 485 had occasion to consider the Evidence Act is as follows:- “81. Presumption
Gazetteer of the Bombay presidency, Vol. III as to Gazettes, newspapers, private Acts of
published in 1879. This Court held that Gazette is Parliament and other documents.—The Court shall
admissible under Section 35 read with Section 81 presume the genuineness of every document
of the Evidence Act, 1872. It was held that the purporting to be the London Gazette, or any
Court may in conjunction with the other evidence Official Gazette, or the Government Gazette of any
may take into consideration in adjudging the colony, dependency of possession of the British

564
Crown, or to be a newspaper or journal, or to be a H. Blochmann from persian to English. Col. H.S.
copy of a private Act Jarrett translated Vol. No.II. Shri Jadunath Sarkar,
a Historian of repute corrected and further
Page 75 annotated Vol.II translated into English by Col.
H.S. Jarrett. Shri Jadunath Sarkar in his
of Parliament of the United Kingdom printed by
the Queen’s Printer, and of every document Page 77
purporting to be a document directed by any law to
be kept by any person, if such document is kept Editor’s introduction has observed that Second
substantially in the form required by law and is volume was designated to serve as a Gazetteer of
produced from proper custody.” the Mughal Empire under Akbar. Jadunath Sarkar
says that Third volume of the A-in-i-Akbari was
82. Now, remains the next contention of Dr. encyclopedia of the religion, philosophy and
Dhavan that Gazetteers prior to 1858, when the sciences of the Hindus. The above was stated by
sovereignty of the area was not under direct control Jadunath Shankar in following words:- “The third
of British, during the regime of East India volume of the Ain-i-Akbari is an encyclopedia of
Company, cannot be relied. In the present case, the the religion, philosophy and sciences of the Hindus,
Gazetteers, which have been relied are of the preceded by the chronology and cosmography of
Gazetteers of Nineteenth Century. The East India the Muslims, as required by literary convention, for
company by Charter from Queen Elizabeth on comparison with the Hindu ideas on the same
31.12.1600 were permitted to trade in the East subjects. The second volume was designed to
Indies. The Company initially setup a factory at serve as a Gazetteer of the Mughal Empire under
Surat (State of Gujarat) in 1619. The jurisdiction Akbar. Its value lies in its minute topographical
and power of East India Company were enlarged descriptions and statistics about numberless small
by various charters issued by the Queen and places and its survey of the Empire’s finances,
subsequently by enactments made by the British trade and industry, castes and tribes.” 84. In
Parliament. By 1805, several functions in Oudh second volume of the A-in-i-Akbari details have
area were also entrusted to the East Indies been given regarding "The Subah of Oudh", a
Company including establishment of Sudder Court description of Awadh (Ayodhya) mentioned that
in Oudh area. East India Company, by beginning of Awadh (Ayodhya) is one of the largest cities of
Nineteenth Century, was not only a trading India. The description refers to Oudh as residence
company but had of Ramchandra following is the description given
at page 182 Vol.2:- “Awadh (Ajodhya) is one of
Page 76
the largest cities of India. In is situated in
statutory and governmental power as entrusted by
Page 78
Charters and Acts of the British Parliament with
agreement of Nawab of Avadh in 1801. In any longitude 118o 6’, and latitude 27 o, 22. It ancient
view of the matter, the Gazetteers, which were times its populous site covered an extent of 148 kos
prepared during the regime of the East India in length and 36 in breadth, and it is esteemed one
Company in the Nineteenth Century contains a of the holiest places of antiquity. Around the
record of public history and they are clearly environs of the city, they sift the earth and gold is
admissible under Section 57 of the Evidence Act. obtained. It was the residence of Ramachandra
Therefore, there is no substance in the submission who in the Treta age combined in his own person
of Dr. Dhavan that Gazetteers prior to 1858 should both the spiritual supremacy and the kingly office.”
not be looked into.
85. Further Volume III, Chapter VI contains a
83. During the relevant period, the first important heading "The Eighteen Sciences”. The description
historical book, which contains the minutest details refers to Vedas and 18 Puranas and other religious
of administration in the regime of the Akbar is A- texts. The book also refers to Avatars (incarnation
ini-Akbari, which was completed in Sixteenth of the Deity) in the following words:- “Avataras or
Century. The A-in-i-Akbari was work of Abul- Incarnations of the Deity They believe that the
Fazl Allami, who was one of the Ministers in the Supreme Being in the wisdom of His counsel,
Akbar’s Court. The A-ini-Akbari was translated by assumes an elementary form of a special character

565
for the good of the creation, and many of the wisest holiest places of antiquity. The above statement in
of the Hindus accept this doctrine. Such a Ain-e-Akbari clearly indicate that faith and belief
complete incarnation is called Purnavatara, and that of Hindus was that Ayodhya is a holiest place and
principle which in some created forms is scintillant birthplace of Lord Ram, the incarnation of Vishnu,
with the rays of the divinity and bestows which belief was continuing since before period of
extraordinary powers is called Ansavatara or partial Akbar and still continues as on date.
incarnation. These latter will not be here
considered. Of the first kind they say that in the 88. William Finch visited India from 1607 to 1611
whole four Yugas, ten manifestations will take A.D., his travel account has been published by
place, and that nine have up to the present time William Foster in his book "Early Travels in
appeared.” India".

Page 79 89. William Finch mentioned about ruins of the

Ramachandra’s castle and houses. The travel
86. The book have details of 9 avatars of Supreme accounts also noticed the belief of Indians that
Being (Lord Vishnu) Ram Avatar or Ram Ramchandra was
incarnation has also been mentioned in following
words:- “Ramavatara, or Rama-Incarnation. They Page 81
relate that Ravana one of the Rakshasas two
born, who took flesh upon him. 90. Father Joseph
generations in descent from Brahma, had ten heads
Tieffenthaler visited India between 1766-1771
and twenty hands. He underwent austerities for a
A.D. He wrote historical and geographical
period of ten thousand years in the Kailasa
description of India in latin. All the latin work was
mountain and devoted his heads, one after another
translated in French. English translation of the
in this penance in the hope of obtaining the
work was filed before the High Court as Ext. 133
sovereignty of the three worlds. The Deity
(Suit-5) and has been extensively relied on. In the
appeared to him and granted his prayer. The gods
description of the Province of Oudh, following is
were afflicted by his rule and as in the former
stated:- “But a place especially famous is the one
instances, solicited his dethronement which was
called Sitha Rassoi i.e. the table of Sita, wife of
vouchsafed, and Rama was appointed to
Ram, adjoining to the city in the South, and is
accomplish this end. He was accordingly born
situated on a mud hill. Emperor Aurengzebe got
during the Treta Yuga on the ninth of the light half
the fortress called Ramcot demolished and got a
of the month of Chaitra (March-April) in the city of
Muslim temple, with triple domes, constructed at
Ayodhya, of Kausalya wife of Raja Dasaratha. At
the same place. Others say that it was constructed
the first dawn of intelligence, he acquired much
by ‘Babor’. Fourteen black stone pillars of 5 span
learning and withdrawing from all worldly pursuits,
high, which had existed at the site of the fortress,
set out journeying through wilds and gave a fresh
are seen there. Twelve of these pillars now support
beauty to his life by visiting holy shrines. He
the interior arcades of the mosque. Two (of these
became lord of the earth and slew Ravana. He ruled
12) are placed at the entrance of the cloister. The
for eleven thousand years and Introduced just laws
two others are part of the tomb of some ‘Moor’. It
of administration.” (Highlighted by us)
is narrated that these pillars, or rather this debris of
Page 80 the pillars skillfully made, were brought from the
island of Lance or Selendip (called Ceylan by the
87. The A-in-i-Akbari is attestation of the faith and Europeans) by Hanuman, King of Monkeys. On
beliefs held by Hindus in the period of Emperor the left is seen a square box raised 5 inches above
Akbar. Ayodhya was mentioned as residence of the ground, with borders made of lime, with a
Ramachandra, who was further described as length of more than 5
Avatar, i.e., incarnation of Vishnu. Specific
statement has been made that during the Treta Page 82
Yuga on the ninth of the light half of the month of
ells and a maximum width of about 4 ells. The
Chaitra in the city of Ayodhya, of Kausalya wife of
Hindus call it Bedi i.e. ‘the cradle’. The reason for
Raja Dasaratha, Lord Ram was born. The A-ini-
this is that once upon a time, here was a house
Akbari unmistakeably refers Ayodhya as one of the
where Beschan was born in the form of Ram. It is

566
said that his three brothers too were born here. who walk round the temples and Idols, bathe in the
Subsequently, Aurengzebe or Babor, according to holy pools, and perform the customary ceremonies.
others, got this place razed in order to deny the
noble people, the opportunity of practicing their 94. The next Gazette relied is History, Antiquities,
superstitions. However, there still exists some Topography and Statistics of Eastern India (1838).
superstitious cult in some place or other. For While noticing the history and topography of
example, in the place where the native house of Gorukhpoor, Montgomery Martin mentioned about
Ram existed, they go around 3 times and prostrate Ayodhya and its glory.
on the floor. The two spots are surrounded by a
95. A Gazetteer was published by Edward
low wall constructed with battlements. One enters
Thornton “Gazetteer of India” (1854). In 1858,
the front hall through a low semi-circular door.”
Edward Thornton published another Gazetteer
91. The three important statements contained in the namely “Gazetteer of the Territories under the
account need to be noted:- First, that Emperor Government of the East Indies Company of the
Aurengzebe got the fortress called Ramcot native States on the Continent of India”, in which, a
demolished and got a Muslim temple, with triple fairly large description of Oudh is contained.
domes, constructed at the same place. It further
Page 85
states that fourteen black stone pillars of 5 span
high, which had existed at the site of the fortress, 96. Reference of one more book which was filed as
are seen there. Twelve of these pillars now support an exhibit needs a reference. The book Hadith-e-
the interior arcades of the mosque. Two (of these Sehba was written by Mirza Jaan in the year 1856.
12) are placed at the entrance of the cloister. In the book it was mentioned that the place of
worship called as birthplace of Lord Ram which
Page 83
was adjacent to ‘Sita-KiRasoi’, the Mosque was
Second that, on the left is seen a square box raised constructed by Babar in the year 923 Hijri. The
5 inches above the ground, with borders made of translated copy of the book as exhibit 17. The
lime, with a length of more than 5 ells and a following extract from the book is relevant to be
maximum width of about 4 ells, which is called noticed:-
Bedi (i.e. the “cradle”) by the Hindus. The reason
“The above mentioned place is called seat of father
for the faith and belief was also that there was a
of Lord Rama. Places of Idol worshiping situated
house where Beschan (Vishnu) was born in the
here were demolished and even a single piece of
form of Ram. Third, that Aurengzebe or Babar got
any Idol of Hindu religion was left there un-
this place razed in order to deny the noble people,
demolished. The place where was big temple of
the opportunity of practicing their superstitions.
Hindu people, big Masjid was constructed and the
However, there still exists some superstitious cult
place where was small temple of Hindu people,
in some place or other. Since in the place where
there small Masjid was constructed. The place of
the native house of Ram existed, the Hindus go
worship is called birthplace of Lord Rama and the
around 3 times and prostrate on the floor.
place which is adjacent to it, is called "Sita Ki
92. The first Gazetteer relied is East India Rasoi" and Sita is called wife of Lord Rama. At
Gazetteer of Walter Hamilton, first published in that place Babar Shah got constructed a very big
1828. The Gazetteer contained particular Masjid under the supervision of Sayyad Musha
descriptions of the Empires, Kingdoms, Ashiqan in the year 923 Hijri and its history is still
Principalities, provinces, cities, towns, districts, maintained. Today the above-mentioned "Sita Ki
fortresses, harbours, rivers and lakes of Hindostan. Rasoi" is called the Masjid.”

Page 84 97. The book is relevant since it was written in the

year 1856 which was the period of dissension
93. The Gazetteer mentioned reputed site of between
temples dedicated to Ram, Sita, Lakshman and
Hanuman. The Gazetteer further noticed that Page 86
pilgrimage to Oudh are chiefly of the Ramata sect,

567
Hindus and Muslims with regard to issue of Idol submissions is Ext. A-14 (Suit-1), which is a copy
worship at Ayodhya. The book candidly accepts of the letter dated 25.08.1863 sent by the Secretary,
that at the janamsthan of Lord Ram, Mosque was Chief Commissioner of Oudh to the Commissioner,
constructed by Babar. Faizabad Division, where “Mosque” was referred
as “Janam Sthan Mosque”. The letter has already
Faith and belief of Hindus regarding Janma Asthan been extracted.
of Lord Ram during the period 1858 to 1949.
103. The above also clearly proves that even the
98. During this period, there are several Gazetteers, Government officers referred the Mosque as Janam
reports of A.S.I., books and other documentary Sthan Mosque, which is fully corroborates the
evidence, which have been exhibited in the Suits. statements in Gazetteers as noted and extracted
Apart from documentary evidence, a lot of oral above that Babri Mosque was constructed at the
evidence has been led by the parties. Janam Sthan of Lord Ram.

99. At first, Firstly, notice may be had of the 104. The next work to be noticed is Historical
Gazetteers published during the relevant period by Sketch of Tehsil Fyzabad, Zilah Fyzabad,
the Government. All Gazettes, which were published by the Government in 1870. The
published during the relevant period were under the Historical Sketch was prepared by P. Carnegy,
full governmental authority since the British had Officiating Commissioner and Settlement Officer
directly taken control over the area of Oudh w.e.f. of Ayodhya and Fyzabad. P. Carnegy in his sketch
01.11.1958 by Government of India Act, 1858. states that Ayodhya is to Hindu what Macca is to
the Mohamedan and Jerusalem to the Jews. P.
Page 87
Carnegy
100. At this juncture notice may be taken of one
Page 89
more relevant aspect, which is, that after the British
Government took over the area w.e.f. 01.11.1858, description has been extracted.
in the official reports, correspondences and orders
issued by officers of British Government, the 105. P. Carnegy has further referred to Janmasthan
“Mosque” was always referred to as “Mosque and other temples and has categorically stated that
Janma Sthan”, which clearly indicates that at the place of Janmasthan Emperor Babar built a
Government officers at that time always treated the Mosque, which still bears his name in A.D. 1528.
mosque as situated at Janma Sthan. Sufficient
materials brought on record evidences the above 106. P. Carnegy has also noticed under the heading
aspect; which may be referred to. Sheetal Dubey, Hindu and Musalman differences about great
Thanedar Oudh has submitted a report on rupture, which took place between the Hindus and
01.12.1858, which is Ext. 21 of Suit No.1, which Mahomedans, where Hindus were said to have
report also refers to “Masjid” as “Masjid Janma taken control of Janmasthan after fierce fight. It
Sthan”. Report dated 01.12.1858 is already further noticed that up to that time the Hindus and
extracted. Mahomedans alike used to worship in the Mosque-
Temple and since British rule a railing has been put
101. Similarly in his report dated 06.12.1858, up to prevent the dispute.
Thanedar, Oudh, Sheetal Dubey, has again referred
the “Masjid” as “Masjid Janam Sthan”. An order 107. Another Gazetteer published in 1877 is
was passed on the application of Thanedar Sheetal Gazetteer of the Province of Oudh. The Ayodhya
Dubey on 10.12.1858, in which order, “Masjid” has been elaborately dealt in the Gazette. In above
was referred as “Masjid Janam Sthan”. The said Gazetteer, a description with regard to Janamasthan
order is brought on record is Ext. A-69 (Suit No.1), and other temples, is mentioned as extracted.
already extracted.
Page 90
Page 88
108. Under heading “Babar’s Mosque” and “Hindu
102. Another important document, which has been and Musalman Differences”, the same contents
much relied by Dr. Rajeev Dhavan in his have been repeated under the Gazetteer, which I
have already extracted while noticing the Historical

568
Sketch of Tahsil Fyzabad, Zillah Fyzabad by P. the NorthWestern Provinces and Oudh” in the year
Carnegy, which are not being repeated for brevity. 1891 while describing Faizabad district, dealing
city of Ayodhya noted that in place of important
109. In 1880, A.F. Millitt prepared his “Report on Hindu temple namely ‘Janmasthan’, a ‘Mosque’
Settlement of Land Revenue of the Faizabad” was built during the reign of Babur which still
which is extracted above. bears his name. It was further mentioned that old
temple must have been a very fine one, for many of
110. Next to be noticed is Report of A.S.I. of North
its column have been utilised by the Musalmans in
West Provinces and Oudh, published in 1889,
the construction of Babri Masjid.
which states that "The old temple of Ramachandra
at Janmasthanam must have been a very fine one, 118. The Gazetteer of “Bara Banki”, volume
for many of its columns have been used by the 48(1921), of the District Gazetteers of the United
Musalmans in the construction of Babar's masjid, Provinces of Agra and Oudh mentioned about a
extracted earlier. dispute which took place in the year 1853 between
Hindu priests and Musalmans of Ayodhya with
111. One more report published by Archaeological
regard to the ground on which formerly stood the
Survey of India published in 1889 needs to be
Janmasthan temple, which was destroyed by Babar
noted, with heading “The Sharqi Architecture of
and replaced by a Mosque. Following
Jaunpur; with Notes on Zafarabad, Sahet-Mahet
and other places in the Page 93

Page 91 has been stated at page 169 of the Gazette under

the heading 'History' in chapter 5:- “...It would
North-Western Provinces and Oudh” by A. Fuhrer
appear that the event happened in the year 1853.
(extracted earlier).
The cause of the occurrence was one of the
112. The A.S.I., thus, clearly state that Babar’s numerous disputes that have sprung up from time
Masjid at Ayodhya was built on the very spot to time between Hindu Priests and the Musalmans
where the old temple Janmasthan of Ramchandra of Ajodhya with regard to the ground on which
was standing. formerly stood the Janamsthan temple, which was
destroyed by Babar and replaced by a mosque.
113. Another Report was published by A.S.I. on Other mosques had been built there by Aurangzeb
the Monumental Antiquities and Inscriptions in the and others and some of them had fallen into decay.
NorthWestern Provinces and Oudh by A. Fuhrer. The ground, being peculiarly sacred to the Hindus,
Referring to Ramachandra, it mentioned that Lord was at once seized by the Bairagis and others, thus
Ram was born there. The Report refers that affording a fertile source of friction...”
Janmasthanam Temple was demolished and a
Masjid was constructed in 930 Hijri. 119. The Gazetteer has further narrated details of a
march by Amir Ali under whom large number of
114. The next Gazetteer, which has been referred Muslims marched towards Ayodhya but were
and relied is Gazetteer of Fyzabad, Vol. XLIII intercepted by Colonel Barlow of First Regiment of
published in 1905 by the Government of the United Oudh in which large number of persons were
Provinces of Agra and Oudh (extracted earlier). slained and first infantry was almost destroyed. The
Gazetteer reports that Amir Ali was also killed. In
115. In the “Imperial Gazetteer of India” published February 1856, the kingdom of Oudh was annexed
in 1908 with respect to Faizabad Division, by British government. 120. Apart from Gazetteers
extracted earlier. and books as referred above, there are other
documentary evidences brought on record by the
Page 92
parties of the suits in question. Reference can
116. In 1928, publication of Faizabad, Gazetteer
Page 94
was undertaken by H.R. Nevill, extracted earlier.
be made to certain exhibits, certified copies
117. Archaeological Survey of India in volume
obtained from public record which are submitted in
“The Monumental Antiquities and Inscriptions in
the suit. An Application dated 28.11.1858 by

569
Sheetal Dubey, Thanedaar Oudh is filed as exhibit- 128. Exhibit A-55 filed in Suit No. 4 is report of
19 in the Suit No. 1, extracted earlier. 121. Next Khem Singh subedar dated 16.03.1861 regarding
documentary evidence brought on record is an demolition of Kutiya of Inkani Singh. 129. Exhibit
application dated 30.11.1858 submitted by Syed A-30 filed in Suit No. 4, application dated
Mohammed Khatib Moazzim Masjid Babri Sites in 25.09.1866 submitted by muhammed Afzal
Oudh. In the complaint submitted by Mohammed complaint mentioned that Tulsidas etc. Bairagis
Khatib Moazzim of the Babri Mosque, it was had placed an Idol inside the premises in 3 hours.
mentioned that a Nihang Singh is creating a riot at Public complaint was made (extracted earlier).
janamsthan Masjid situated in Oudh. Complaint
mentioned that near mehrab and mimber, he has 130. Evidence has been brought on the record to
constructed an earth chabutra inside the Mosque, the fact that Deputy Commissioner, Ayodhya by an
'Puja' and 'Home' is continuing there and in whole order dated 03.04.1877 has granted permission to
of Masjid, "Ram Ram" is written. The request in Khem Das, Mahant, janamsthan to open the door in
the complaint was to oust the Hindus from the the Northern wall in the premises of Mosque. An
Mosque (extracted earlier). appeal was filed by Syed mohammed Asghar
against the said order. Grounds of the appeal have
122. Another document filed as exhibit 21 dated been brought on the record as exhibit
31.12.1828 which is the report submitted by
Sheetal Dubey, Thanedar, Oudh. In the report, Page 97
Sheetal Dubey has referred the ‘Mosque’ as
30 in Suit No. 1. The appeal also noticed that Idols
'Mosque Janmasthan' (extracted earlier).
on the premises have not yet been removed. The
Page 95 appeal also admits small Chulha in the premises.
Ground 6 of the appeal(exhibit-30) is as follows:-
123. Next exhibit relied is exhibit 31 of Suit No.1 “Section 6. That there has been old controversy
which is an application filed by Mir Rajjabali between the respondent and the appellant and the
khatib Masjid for removal of Chabutra which was Hon'ble Court has ordered that the respondent
built in the Mosque(extracted earlier). should not do anything new on that place. But
because of Baldeo Dass bairagis being
124. The above Application itself is an evidence of underground, the order dated November 7, 1873
Chabutra of Hindus in the premise of Mosque and would not be served upon him. That is to say, idol
puja being performed by blowing conch. 125. has not yet been removed as per orders. The
Another application was made by one Mohammed respondent with the intention of occupying it
Asghar on 12th February 1861 seeking removal of continues to indulge in several activities on the
Chabutra and hut of the Hindus from the Mosque wall and on being restraint by someone, he
premises. The application was filed as exhibit 54 in becomes aggressive and is bent upon to fight with
suit 4. 126. The application was given on behalf of him. So he has made a chulha within the said
Mohammed Asghar, Mir Rajjab Ali and compound which has never been done before. In
muhammed Afzal, Khateeb and Muezzin of Babri the past, there was near a small chulha(kitchen) for
Masjid situated at Janmasthan, Ayodhya. The Puja which he has got extended.“
application dated 12th March 1861 is extracted
earlier. 131. In the above appeal, report of Deputy
Commissioner, Faizabad was submitted. In the
127. One important fact which may be noted from report, Deputy Commissioner mentioned that
the opening of the door was necessary to give a
separate route on fair days to the visitors to the
Page 96
Janmasthan.
above application and some earlier applications
132. The above report by Deputy Commissioner
which were made on behalf of khateeb and
clearly proves that Hindus were visiting the
muezzin of Babri Mosque is that description of
janamsthan which
Babri Mosque is always mentioned as "Babri
Masjid situated at Janmasthan, Ayodhya". Page 98

570
was within the Mosque premises. The Mosque is testimony of their continued faith and
Commissioner had ultimately dismissed the appeal belief that premises of the Mosque is Janmasthan
of Muhammed Asghar on 13.04.1877. of Lord Ram.

133. Another important fact to be noticed is filing ORAL EVIDENCES:- 136. The parties led
of suit by Mahant Raghubar Das being case substantial amount of the oral evidence in the suits.
number 61 of 280 of 1885 before sub-judge Plaintiff of Suit No. 4 produced 32 witnesses which
Faizabad where plaintiff has sought permission to are descibed as PWs. Plaintiff of Suit No.5
construct a temple on Chabutra existing inside the produced 19 witnesses which are descibed as
Mosque premises. The permission to construct the OPWs. Plaintiff of Suit No.3 also produced 20
temple was denied by dismissing the suit on witnesses who are descibed as DWs. In Suit No.4,
24.12.1885. An appeal was filed by Mahant defendant No. 2/1 produced 3 witnesses. Other
Raghubar Das before District Judge Faizabad. The defendants in Suit No.4 have also produced certain
District judge dismissed the appeal on 18.12.1886. witnesses.

134. The second appeal against the said judgement 137. The oral evidences of the witnesses need to be
was dismissed by Judicial Commissioner, Oudh. examined with regard to the aspect of faith and
belief of Hindus about the Janmasthan of Ram
135. There is further evidence which have been Janma Bhumi as well as evidene of worship and
brought on record to prove that in the year 1934 Puja there at. 327. Mahant Paramhans Ramchandra
there was Hindu Muslim riot in Ayodhya in which Das OPW-1, aged about 90 years (as on
riot the Dome of Babri Mosque was damaged by 23.12.1999), was examined by plaintiff of suit
Hindus which was got constructed by No.5. Mahant Ram chander Das is resident of
Administration through a Muslim Panch Ramanandi Akhil Bharti Anni and Digambar
Akhara, Ayodhya. He came to Ayodhya at the age
Page 99
of 14-15 years.
contractor. Documents pertaining to repair of the
Page 101
Mosque by a Muslim contractor, application for
payment of his bills have been brought on the In his examination in chief, Mahant Paramhans
record by plaintiff of Suit No. 4 which are Ram Chander Das states:- “...Since the time I came
testimony of differences and dispute between the to Ayodhya, I have always seen people going for
parties which took place in 1934 damaging the Darshan(glimpse) at seven places at Ram
Mosque which could be repaired after several Janambhumi, Hanuman Garhi,Nageshwarnath,
months. The documentary evidence referred above Saryu, Chhoti Devkali, Badi Devkali, Laxman
amply proves that within the premises of Mosque Ghat, Sapt Sagar situated near Chhoti Devkali and
which premises is bounded by boundary wall the kanak Bhawan temple. The seven places are
Hindus were visiting and worshipping in the period unchangeable and their location cannot be changed,
in question. The application submitted by Khateeb which means that one place cannot be built at the
and muezzin of Babri Mosque as noted above place of other one. Mani Parvat is a famous place,
clearly admits the worship and Puja by the Hindus, bit is different from the seven places. There was an
construction of Chabutra by the Hindus, putting the idol of Lord Ram at Ram Janam Bhoomi. There
Idols by the Hindus in the Mosque premises. The was Sita's kitchen also. As per customs there was a
reference of Babri Mosque as janamsthan Masjid in special hall by the name of Ram Janam Bhoomi
several application also indicates that Mosque was and on all the pictures and statues of many Gods
situated at the janamsthan of Lord Ram. The above and Goddesses here engraved their own. Apart
documentary evidence are testimonial of faith and from statues. That place was also worshipped,
belief of the Hindus that the Mosque was on the which was said to be the birthplace of Lord Ram
janamsthan of Lord Ram. Their protest, persistence and where the Lord Ram has appeared. There was a
and actions to worship within the platform also, known as the platform (chabutra) of
Ram Lala and a hut of straws, in which priests of
Page 100
Nirmohi Akhada used to do worship and offer
food,etc. To the deity of Lord Ram... ”

571
138. In his cross examination he states:- ““...The belief I have been going to Shri Ram Janam
place, which i describe as 'Garbh Griha', is Bhoomi for Darshan. After completing my study,
according to my belief and according to the belief whenever I came to Ayodhya I used to go there for
of all Hindus, birthplace of Ramchandra ji. I Darshan invariably. I mostly live in Sugreev Quila,
consider that place, where on 23rd December 1949 ram kot, ayodhya for about last 8-9 years and
idol was installed after removing it from the usually go to the Ram Janmabhoomi for having
chabutra, as birth place and I used to Darshan. ””

Page 102 140. Further in his cross examination he states: -

“6....... The building having domEs was the holy
consider that place as birth place before the sanctum sanctorum, where, it is believed that
installation of Idol there. bhagwan Shri Ram had taken birth. Hindu pilgrims
and Darshanarthies (viewers) you used to offer
Question:- Can that place, which you described as
fruits, flowers and money there also, owing to their
birthplace according to your belief, be 10-15 hands
faith....... ”
away on either side of the middle dome place?
Page 104
Answer:- No. The place where the order is
placed, authentic place and the whole Hindu 141. Reiterating his faith in Ram Janam Bhumi in
community believes in that very place. There is no cross examination he further states: - “... It is right
scope of any doubt. There cannot be a distance of that in my above statement 1 had stated that the
even two-four feet find the location of this place. disputed site is the Janam Bhoomi of Ram. This
faith of mine is not by reading any religious book
The basis of this belief is that Hindus have been
but is based on what I have heard from old and
having Darshan of this place as janambhoomi Since
aged persons. I am having this faith well before I
centuries...” ”
came to Ayodhya. That is to say when I gained
139. Next statement to be noticed is of OPW-4, consciousness I have such faith and this was by
Shri Harihar Prasad Tiwari. He was aged 85 hearing from the people. In between 1934 to 38
years(as on 01.08.2002). He claims to have lived in when I was at Ayodhya, possibly I would have
Ayodhya from 1934 to 1938 at Ram Niwas Mandir gone to the janambhumi i.e. the disputed site
which was only 250300 steps from Ram Janma thousands of times. During my studies I used to go
Bhumi. He has referred to faith and belief of people to the Janam Bhoomi... ”
that Bhagwan Vishnu has
142. He in his statement also stated that there was
Page 103 Parikrama marg outside the west side wall of the
disputed building and he used to do Parikrama.
incarnated as Bhagwan Shri Ram at that very place. “....Outside the west side wall of the disputed
In para 3 of his examination-in-chief, he states:- building there was a Parikrama Marg(route) close
““3. Ayodhya is an ancient and The holiest to the wall and walking on this route I used to
Pilgrimage for Hindus where Parambharma perform Parikrama(religious round). This route was
Parmeshwar Bhagwan Vishnu incarnated as Shri made walk able and some old brick were laid on
Ram, son of king Dashratha. The followers of it.....”
Hinduism have the faith from the time immemorial
that bhagwan Vishnu incarnated at Ayodhya as 143. In his statement he also stated that he used to
Lord Shri Ram. This place is adorable. Owing to perform Parikrama through the Parikrama Marg.
this trust and faith people used to visit for Darshan
Page 105
and Parikrama(taking round) of Shri Ram Janm
Bhoomi. My family members, my grandfather and 144. Next statement to be noticed is the statement
elderly people, saints and hermits of Ayodhya, of OPW-5 Ram Nath Mishra who was aged 91
during my study there from 1934 to 1938, used to years(as on 06.08.2006). He claimed to have come
say that Bhagwan Vishnu had incarnated as to Ayodhya in the Baisakh month of 1932. He used
Bhagwan Shri Ram at this very place and this is to work as “Teerth Purohit”. In his cross-
Shri Ram Janam Bhoomi. Based on this faith and examination he states:- “.... According to elderly

572
people, it was under the central dome the Lord belief. On the basis of this faith and belief, I also
Rama was born as the son of king Dashrath. It was used to go for Darshan and Parikrama of the Shri
on the basis of this faith and belief that I and all the Ram Janam Bhoomi."
Hindu devotees of Lord Rama used to have the
darshan of Shri Ram Janam Bhoomi. It was 148. Further he states: - “12. All the pilgrims -
considered to be sacrosanct place and a place worth darshnarthees would enter the Sri Ram Janam
worshipping.....” Bhoomi premises from the entry gate to the east
and have
145. He further states: - “... All the Hindus have
this old traditional belief that Lord Vishnu was Page 107
born as the son of king Dashrath at this place only
darshans of the idols placed at Ram chabootra, of
and that is why this place is so sacred and worthy
the idols placed under the neem and peepal tree
of worship. It is on the basis of this faith and belief
located to its southeast corner and Sita Rasoi and
that lakhs of pilgrims have been coming to
the foot prints etc., there and also have darshan of
Ayodhya for the ‘Darshan’ and ‘Parikrama’ of
the sacosanct Sri Ram Janam Bhoomi located
Lord Rama's birth place and continue to do it till
inside the barred wall which is considered to be the
date. There is a stone of the times of the Britishers
Sanctum-Sanactorum. The pilgrims and those
outside the main entry gate, on which is written
coming for darshans and we used to make offerings
'Janambhoomi Nitya Yatra' and the digit one of
like fruit and cash according to our shardha. At the
Hindi('ek')...... “
SanctumSanctorum also, the pilgrims and we after
146. OPW-6, Housila Prasad Tripathi aged 80 the darshan of this used to make offerings through
years(as on 13.08.2002) claims to have come to the barred wall as per our belief.”
Ayodhya in December 1935. In his examination-in-
149. In his cross-examination, he denied the fact
chief, he states:-
that public opinion regarding Ram Janam Bhumi is
Page 106 of twentieth century. He states it to be since long as
per tradition. “...However, the public opinion is that
“7. We have this faith and believe that lord Shri the birth place of Ramji is the same i.e. Ram Janam
Ram was born at Ayodhya and that place is famous Bhoomi about which a dispute is going on. It is
as Shri Ram Janam Bhoomi where people in lakhs wrong to say that this public opinion is of the
come from every nook and corner of the country twentieth century. As a matter of fact, it has been
and after having Darshan shri Ram Janmabhoomi there since long as per tradition...”
do its Parikrama. It is on the basis of this faith and
believe that we also come to Shri Ram janam 150. OPW-7, Ram Surat Tiwari, 73 years of age(as
bhumi three to four times a year and make it a point on 19.09.2002), claims to have gone to Ayodhya
to have darshan of Shri Ram janam bhoomi and for the first time in the year 1932 and thereafter has
then have its Parikrama. been going regularly. In his examination-in-chief,
he states: -
8. I am also of the firm faith and believe that Lord
Shri Ram was born at the same very place at Page 108
Ayodhya where thousands of Hindu pilgrims come
“.....My elder brother told me that this was the birth
for Darshan and Parikrama. It was on the basis of
place of Lord rama (this is Ram Janam Bhoomi)
this belief that since 1935, I also went to Ayodhya
and from the very ancient times Hindus have trust,
three to four times every year and after a bath in the
confidence and a popular faith that Lord Vishnu
Saryu river had darshans of Kanak bhawan,
had incarnated in the name of Shri Ram son of Raja
Hanumangarhi and of Shri Ram Janam Bhoomi and
Dashrath below the middle dome and this is why it
had the Parikrama of Shri Ram Janam Bhoomi."”
has been called ‘garbh griha’. After having the
147. He further states:- “10.....There was a building darshan of Ram Chabootra, the pilgrims and
of 3 shikhars to the west of the wall with iron-bars visitors used to go through doors of lattice wall to
in which the place of the central Shikhar portion is the three domed building and from there they got
Shri Ram Janmabhoomi which is called Sanctum- the darshan of ‘Garbh Griha’ and they offered
Sanctorum, according to Hindu tradition, faith and

573
flowers, prasad and coins towards the ‘Garbh building having three domes. This is the traditional
Griha’. belief and

151. He further stated in his cross-examination Page 110

about his faith and belief regarding Ram Janam
Bhumi in following words:- “so far as 3-dome firm faith which makes the people of this country
building is concerned, I had a faith which I and the numerous pilgrims from outside to visit this
maintained even today that it was the janam birth place of Lord Shri Ram to pray and do
bhoomi of Ram Ji.” parikrama of this place.”

152. Further in his cross-examination, he stated that 155. In his cross-examination, he maintain “it is by
he after offering flowers and prasad prostated belief that he got his birth at the place where Babri
himself on the ground below the dome from Masjid was established.”
outside. “...Before reaching the eastern gate, my
156. Next witness OPW-13, Narad Saran, age 76
brother from outside the wall fitted with iron bars
years(as on 27.01.2003) claims to have come to
offered flowers at the building with three domes
Ayodhya with a desire to become a Sadhu. In his
and gave it to me also which I also offered. I
examination-in-chief, he states:- “When entering
offered the flowers through the iron bars from
through the eastern gate there was a building with
outside only. At the time when I offered flowers,
three domes west, just below the middle dome,
prasad and
there was sanctum-sanctorum which was
Page 109 worshipped. My preceptor had told me about this
place that it was always the most worshipped as the
money offered by others were also lying there. I birth place of Lord Ram since time immemorial. I
prostrated myself on the ground below the dome have also worshipped this place and found that it
from outside only. I had asked my brother why was thronged by thousands of pilgrims who paid
was he offering flowers at that place, on which he their obeisance to this holy shrine. They also
told that Lord Rama was born at the place under visited and worshipped Sita Kitchen, Ram
the middle dome of this building. The place which chabutara etc., and made a full round of the entire
I had visited was the one below the middle premises after coming out of Hanumatdwar.”
dome...”
157. In his cross-examination he states:-
153. OPW-12, Sri Kaushal Kishore Mishra, aged “...Ayodhya is the Janam bhoomi of Lord Ram and
75 years(as on 16.12.2002) stated to have perform we take the place below middle dome of
worship in Ram Janam Bhumi at the age of 14-15
years. In his examination-in-chief he states:- “6. Page 111
When I started to go to Ram Janam Bhoomi with
the disputed structure as his Janamsthan.
my grandfather and father, I noticed that the
Janamsthan and Janambhoomi have the same
pilgrims, devotees etc, who came to Ayodhya, used
meaning....”
to visit Shri Ram Janam Bhoomi without fail.
During the main festivals the gathering was very 158. DW-3/14, Jagad Guru Ramanand Acharya
high, say more than lakhs and they used to worship Swami Haryacharya, aged 69 years(as on
and visit Ram Chabootra, Sita Rasoi, Shiv 23.07.2004) stated in his cross-examination:- “...I
Chabootra and Sanctum-Sanactorum(where Lord used to go to three domes Bhawan for darshan,
Ram was born) below the middle dome of three earlier. I have also taken the darshan of Shri Ram
domed building and make round of the premises Lalla. I took darshan because I believe that one
(Parikrama) outside the walls only.” could get salvation by doing the darshan...”
154. He futher states: - “12. I had been told by my 159. DW-3/1, Mahant Bhaskar Das, aged 75
grandfather and father that according to the faith years(as on 29.08.2003). In his examination-in-
and belief of Hindus since time immemorial, Lord chief, he states: - “..During my tenure from 1946 to
Ram was born as a son of King Dashrath in Treta 1949 till the date of attachment no Muslim ever
Era in this Sanctum-Sanactorum situated under the visited the disputed site to offer Namaz and no
Namaz was recited there. Hindu devotees used to

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offer money, sweets, fruits and other items to the side. It is true that the place I call ‘Babri Masjid’ is
deities seated within and out of the disputed site called ‘Janamsthan’ by Hindus.”
which were received by the Nirmohi Akhara
through the priest..” 166. The oral evidence as noticed above of the
witnesses examined on behalf of plaintiffs of Suit
160. The witnesses who were examined by No.5, plaintiffs of Suit No.3 and even witness
plaintiffs of Suit No.4 also in their statement have examined on behalf of plaintiffs of Suit No.4
admitted that what they call ‘Babri Masjid’ is clearly proves faith and belief of Hindus that
called by Hindus as ‘Janmasthan’. Janmasthan of Lord Ram is the place where Babri
Mosque has been constructed. Three-dome
Page 112 structure was treated as Birthplace of Lord Ram.
People worship of the three-dome structure,
161. Mohd. Hashim who appeared as PW-1 was
parikrama of the entire premises by the devotees
aged 75 years(as on 24.07.1996). In his cross-
have been amply proved by oral evidences led in
examination he admits that the place which was
the Suit.
attached on 22nd/ 23rd December, 1949 is called
Ram Janam Bhumi by Hindus and Babri Masjid by Page 114
Muslims. “...The place which was attached on
22nd/23rd December, 1949 is called Ram 167. The statements noted in all Gazetteers as
janambhoomi by Hindus and Babri Masjid by noticed above published under authority of
Muslims. In the suit of Gopal Singh visharad also it government categorically and unanimously state
has been called Ram Janam Bhoomi by Hindus and that at Janmasthan of Lord Ram, Babri Mosque
Babri Masjid by Muslims....” was constructed in 1528 by Babar. It is true that
statements recorded in Gazette is not conclusive
162. He further states that “as Mecca is important evidence but presumption of correctness of
for Muslims so is Ayodhya for Hindus due to Lord statements recorded have to be raised subject to
Ram.” being disproved by leading appropriate evidences.
All Gazettes published by the Government
163. PW-2 Haji Mehboob Ahmed aged 58 years,
authority repeats the same statement that Babri
resident of Tedhi Bazar, Ayodhya, states in his
Mosque was constructed at the Janmasthan of Lord
crossexamination:- “...The grilled wall adjoined the
Ram. There is no evidence worth name led of the
wall of the mosque to the south. We call it a Masjid
plaintiffs of Suit No.4 to disprove the above
and the other party calls it a Mandir. The height of
statement and further, oral evidence as noticed
the entire boundary was the same. This was a fully
above clearly supports the faith and belief of
constructed building to the west of the courtyard.
Hindus that Lord Ram was born at the place where
This was a mosque to which others called a
Babri Mosque has been constructed. The
Mandir...”
conclusion that place of birth of Lord Ram is the
164. Mohd. Yaseen PW-4, aged 66 years (as on threedome structure can, therefore, be reached.
07.10.1996) also states following: -
168. Dr. Rajeev Dhawan, learned senior counsel
Page 113 submits that although in oral statements it was
stated by the
“...I live in Ayodhya, so I often meet some Hindus
and Priests also. We also meet them in marriage Page 115
ceremonies. They believe that this is the birth place
witnesses that birthplace of Lord Ram is below the
of Lord Rama. (Then said they have their own
middle dome but infact Ram Chabutra which was
faith). Hindus consider it a sacred place and
outside the three-dome structure on the left side in
worship here...”
outer courtyard was the birthplace of Lord Ram. He
165. PW-23, Mohd. Qasim, aged 74 years, admits submits that in the judgment of the suit filed in
in his cross-examination that what he call ‘Babri 1885 by Mahant Raghubar Das also the Janmasthan
Masjid’ is called ‘Janamsthan by Hindus’. He was treated to be Ram Chabutra.
states : “after that there is Babri Masjid on its one

575
169. The sequence of the events as noticed above
clearly indicate that faith and belief of Hindus was
that birth place of Lord Ram was in the three-dome
structure Mosque which was constructed at the
janamasthan. It was only during the British period
that grilled wall was constructed dividing the
walled premises of the Mosque into inner courtyard
and outer courtyard. Grilled iron wall was
constructed to keep Hindus outside the grilled iron
wall in the outer courtyard. In view of the
construction of the iron wall, the worship and puja
started in Ram Chabutra in the outer courtyard. Suit
of 1885 was filed seeking permission to construct
temple on the said Chabutra where worship was
permitted by the British Authority.

Page 116

Faith and belief of the Hindus as depicted by the

evidence on record clearly establish that the Hindus
belief that at the birth place of Lord Ram, the
Mosque was constructed and three-dome structure
is the birth place of Lord Ram. The fact that Hindus
were by constructing iron wall, dividing Mosque
premises, kept outside the three-dome structure
cannot be said to alter their faith and belief
regarding the birth place of Lord Ram. The worship
on the Ram Chabutra in the outer courtyard was
symbolic worship of Lord Ram who was believed
to be born in the premises.

170. It is thus concluded on the conclusion that

faith and belief of Hindus since prior to
construction of Mosque and subsequent thereto has
always been that Janmaasthan of Lord Ram is the
place where Babri Mosque has been constructed
which faith and belief is proved by documentary
and oral evidence discussed above.

576