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com)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos 10866-10867 of 2010

M Siddiq (D) Thr Lrs …Appellants

Versus

Mahant Suresh Das & Ors …Respondents

WITH

Civil Appeal Nos 4768-4771/2011

WITH

Civil Appeal No 2636/2011 WITH

Civil Appeal No 821/2011 WITH

Civil Appeal No 4739/2011

WITH

Civil Appeal Nos 4905-4908/2011

WITH

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Civil Appeal No 2215/2011 WITH

Civil Appeal No 4740/2011

WITH

Civil Appeal No 2894/2011 WITH

Civil Appeal No 6965/2011

WITH

Civil Appeal No 4192/2011

WITH

Civil Appeal No 5498/2011

WITH

Civil Appeal No 7226/2011

AND WITH

Civil Appeal No 8096/2011

JUDGMENT

INDEX

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A. Introduction

B. An overview of the suits

C. Evidence: a bird‘s eye view

D. The aftermath of 1856-7

D.1 Response to the wall
D.2 Period between 1934-1949

E. Proceedings under Section 145

F. Points for determination

G. The three inscriptions

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

I. Places of Worship Act

J. Juristic personality
J.1 Development of the law
J.2 Idols and juristic personality
J.3 Juristic personality of the first plaintiff
J.4 Juristic personality of the second plaintiff

K. Analysis of the suits

L. Suit 1: Gopal Singh Visharad

L.1 Pleadings
L.2 Issues and findings of the High Court
L.3 Analysis

M. Suit 3: Nirmohi Akhara

M.1 Pleadings
M.2 Conflict between Suit 3 and Suit 5
M.3 Issues and findings of the High Court
M.4 Limitation in Suit 3
M.5 Oral testimony of the Nirmohi witnesses

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M.6 Nirmohi Akhara‘s claim to possession of the inner courtyard

Documentary evidence in regard to the mosque (1934-1949)

N. Suit 5: The deities N.1 Array of parties

N.2 No contest by the State of Uttar Pradesh
N.3 Pleadings
N.4 Written statements
N.5 Issues and findings of the High Court
N.6 Shebaits: an exclusive right to sue?
A suit by a worshipper or a person interested Nirmohi
Akhara and shebaiti rights

N.7 Limitation in Suit 5

The argument of perpetual minority

N.8 The Suit of 1885 and Res Judicata

N.9 Archaeological report
N.10 Nature and use of the disputed structure: oral evidence
N.11 Photographs of the disputed structure
N.12 Vishnu Hari inscriptions
N.13 The polestar of faith and belief
Travelogues, gazetteers and books
Evidentiary value of travelogues, gazetteers and books
N.14 Historian‘s report

O. Suit 4: Sunni Central Waqf Board

O.1 Analysis of the plaint
O.2 Written statements
O.3 Issues and findings of the High Court
O.4 Limitation in Suit 4
O.5 Applicable legal regime and Justice, Equity and Good Conscience
O.6 Grants and recognition
O.7 Disputes and cases affirming possession

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Impact of Suit of 1885

Incidents between 1934 and 1950
O.8 Proof of namaz
O.9 Placing of idols in 1949
O.10 Nazul land
O.11 Waqf by user
O.12 Possession and adverse possession
O.13 Doctrine of the lost grant
O.14 The smokescreen of the disputed premises – the wall of 1858
O.15 Analysis of evidence in Suit 4
O.16 The Muslim claim to possessory title

P. Analysis on title
P.1 Marshalling the evidence in Suit 4 and Suit 5
P.2 Conclusion on title

Q. Reliefs and directions

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PART A

A. Introduction

1. These first appeals centre around a dispute between two religious

communities both of whom claim ownership over a piece of land

admeasuring 1500 square yards in the town of Ayodhya. The disputed

property is of immense significance to Hindus and Muslims. The Hindu

community claims it as the birthplace of Lord Ram, an incarnation of Lord

Vishnu. The Muslim community claims it as the site of the historic Babri

Masjid built by the first Mughal Emperor, Babur. The lands of our country

have witnessed invasions and dissensions. Yet they have assimilated into

the idea of India everyone who sought their providence, whether they

came as merchants, travellers or as conquerors. The history and culture of

this country have been home to quests for truth, through the material, the

political, and the spiritual. This Court is called upon to fulfil its adjudicatory

function where it is claimed that two quests for the truth impinge on the

freedoms of the other or violate the rule of law.

2. This Court is tasked with the resolution of a dispute whose origins are as

old as the idea of India itself. The events associated with the dispute have

spanned the Mughal empire, colonial rule and the present constitutional

regime. Constitutional values form the cornerstone of this nation and have

facilitated the lawful resolution of the present title dispute through forty-one

days of hearings before this Court. The dispute in these appeals arises out

of four regular suits which were instituted between 1950 and 1989. Before

the Allahabad High Court, voluminous evidence, both oral and

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documentary was led, resulting in three judgements running the course of

4304 pages. This judgement is placed in challenge in the appeals.

3. The disputed land forms part of the village of Kot Rama Chandra or, as it is

otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil

Sadar in the District of Faizabad. An old structure of a mosque existed at

the site until 6

December 1992. The site has religious significance for the devotees of Lord Ram,

who believe that Lord Ram was born at the disputed site. For this reason, the

Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e.

birth-place of Lord Ram). The Hindus assert that there existed at the disputed site

an ancient temple dedicated to Lord Ram, which was demolished upon the

conquest of the Indian sub-continent by Mughal Emperor Babur. On the other

hand, the Muslims contended that the mosque was built by or at the behest of

Babur on vacant land. Though the significance of the site for the Hindus is not

denied, it is the case of the Muslims that there exists no proprietary claim of the

Hindus over the disputed property.

4. A suit was instituted in 1950 before the Civil Judge at Faizabad by a Hindu

worshipper, Gopal Singh Visharad seeking a declaration that according to

his religion and custom, he is entitled to offer prayers at the main

Janmabhumi temple near the idols.

5. The Nirmohi Akhara represents a religious sect amongst the Hindus,

known as the Ramanandi Bairagis. The Nirmohis claim that they were, at

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all material times, in charge and management of the structure at the

disputed site which according to them was a ‗temple‘ until 29 December

1949, on which date an attachment was ordered under Section 145 of the

Code of Criminal Procedure 1898. In effect, they claim as shebaits in

service of the deity, managing its affairs and receiving offerings from

devotees. Theirs is a Suit of 1959 for the management and charge of ‗the

temple‘.

6. The Uttar Pradesh Sunni Central Board of Waqf (―Sunni Central Waqf

Board‖) and other Muslim residents of Ayodhya instituted a suit in 1961 for a

declaration of their title to the disputed site. According to them, the old structure

was a mosque which was built on the instructions of Emperor Babur by Mir Baqi

who was the Commander of his forces, following the conquest of the

subcontinent by the Mughal Emperor in the third decade of the sixteenth century.

The Muslims deny that the mosque was constructed on the site of a destroyed

temple. According to them, prayers were uninterruptedly offered in the mosque

until 23 December 1949 when a group of Hindus desecrated it by placing idols

within the precincts of its three-domed structure with the intent to destroy,

damage and defile the Islamic religious structure. The Sunni Central Waqf Board

claims a declaration of title and, if found necessary, a decree for possession.

7. A suit was instituted in 1989 by a next friend on behalf of the deity

(―Bhagwan Shri Ram Virajman‖) and the birth-place of Lord Ram (―Asthan
Shri

Ram Janmabhumi‖). The suit is founded on the claim that the law recognises

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both the idol and the birth-place as juridical entities. The claim is that the place of

birth is sanctified as an object of worship, personifying the divine spirit of Lord

Ram. Hence, like the idol (which the law recognises as a juridical entity), the

place of birth of the deity is claimed to be a legal person, or as it is described in

legal parlance, to possess a juridical status. A declaration of title to the disputed

site coupled with injunctive relief has been sought.

8. These suits, together with a separate suit by Hindu worshippers were

transferred by the Allahabad High Court to itself for trial from the civil court

at Faizabad. The High Court rendered a judgment in original proceedings

arising out of the four suits and these appeals arise out of the decision of a

Full Bench dated 30 September 2010. The High Court held that the suits

filed by the Sunni Central Waqf Board and by Nirmohi Akhara were barred

by limitation. Despite having held that those two suits were barred by time,

the High Court held in a split 2:1 verdict that the Hindu and Muslim parties

were joint holders of the disputed premises. Each of them was held entitled

to one third of the disputed property. The Nirmohi Akhara was granted the

remaining one third. A preliminary decree to that effect was passed in the

suit brought by the idol and the birth-place of Lord Ram through the next

friend.

9. Before deciding the appeals, it is necessary to set out the significant

events which have taken place in the chequered history of this litigation,

which spans nearly seven decades.

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10. The disputed site has been a flash point of continued conflagration over

decades. In 1856-57, riots broke out between Hindus and Muslims in the

vicinity of the structure. The colonial government attempted to raise a

buffer between the two communities to maintain law and order by set ting

up a grill-brick wall having a height of six or seven feet. This would divide

the premises into two parts: the inner portion which would be used by the

Muslim community and the outer portion or courtyard, which would be used

by the Hindu community. The outer courtyard has several structures of

religious significance for the Hindus, such as the Sita Rasoi and a platform

called the Ramchabutra. In 1877, another door was opened on the

northern side of the outer courtyard by the colonial government, which was

given to the Hindus to control and manage. The bifurcation, as the record

shows, did not resolve the conflict and there were numerous attempts by

one or other of the parties to exclude the other.

11. In January 1885, Mahant Raghubar Das, claiming to be the Mahant of

Ram Janmasthan instituted a suit1 (―Suit of 1885‖) before the Sub-Judge,

Faizabad. The relief which he sought was permission to build a temple on the

Ramchabutra situated in the outer courtyard, measuring seventeen feet by

twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885,

the trial judge dismissed the suit, `noting that there was a possibility of riots

breaking out between the two communities due to the proposed construction of a

temple. The trial judge, however, observed that there could be no question or

doubt regarding the possession and ownership of the Hindus over the Chabutra.
1 (OS No. 61/280 of 1885)

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On 18 March 1886, the District Judge dismissed the appeal against the judgment

of the Trial Court2 but struck off the observations relating to the ownership of

Hindus of the Chabutra contained in the judgment of the Trial Court. On 1

November 1886, the Judicial Commissioner of Oudh dismissed the second

appeal3, noting that the Mahant had failed to present evidence of title to establish

ownership of the Chabutra. In 1934, there was yet another conflagration between

the two communities. The domed structure of the mosque was damaged during

the incident and was subsequently repaired at the cost of the colonial

government.

12. The controversy entered a new phase on the night intervening 22 and 23

December 1949, when the mosque was desecrated by a group of about

fifty or sixty people who broke open its locks and placed idols of Lord Ram

under the central dome. A First Information Report (―FIR‖) was registered

in relation to the incident. On 29 December 1949, the Additional City

Magistrate, Faizabad-cumAyodhya issued a preliminary order under

Section 145 of the Code of Criminal Procedure 1898 4 (―CrPC 1898‖),

treating the situation to be of an emergent nature. Simultaneously, an

attachment order was issued and Priya Datt Ram, the Chairman of the

Municipal Board of Faizabad was appointed as the receiver of the inner

2 Civil Appeal No. 27/1885

3 No 27 of 1886
4 ―Section 145. Procedure where dispute concerning land, etc, is likely to cause breach of peace
(1) Whenever a District Magistrate, or an Executive Magistrate specially empowered by the Government in this
behalf is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace
exists concerning any land or water of the boundaries thereof, within the local limits of his jurisdiction, he shall
make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in
such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put
in written statements of their respective claims as respects the fact of actual possession of the subject of
dispute…‖

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courtyard. On 5 January 1950, the receiver took charge of the inner

courtyard and prepared an inventory of the attached properties. The

Magistrate passed a preliminary order upon recording a satisfaction that

the dispute between the two communities over their claims to worship and

proprietorship over the structure would likely lead to a breach of peace.

The stakeholders were allowed to file their written statements. Under the

Magistrate‘s order, only two or three pujaris were permitted to go inside the

place where the idols were kept, to perform religious ceremonies like bhog

and puja. Members of the general public were restricted from entering and

were only allowed darshan from beyond the

grill-brick wall.

The institution of the suits

13. On 16 January 1950, a suit was instituted by a Hindu devotee, Gopal

Singh Visharad5, (―Suit 1‖) before the Civil Judge at Faizabad, alleging that he

was being prevented by officials of the government from entering the inner

courtyard of the disputed site to offer worship. A declaration was sought to allow

the plaintiff to offer prayers in accordance with the rites and tenets of his religion

(―Sanatan Dharm‖) at the ―main Janmabhumi‖, near the idols, within the inner

courtyard, without hindrance. On the same date, an ad-interim injunction was

issued in the suit. On 19 January 1950, the injunction was modified to prevent the

idols from being removed from the disputed site and from causing interference in

the performance of puja. On 3 March 1951, the Trial Court confirmed the

5 Regular Suit No 2 of 1950. Subsequently renumbered as Other Original Suit (OOS) No 1 of 1989.

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adinterim order, as modified. On 26 May 1955, the appeal 6 against the interim

order was dismissed by the High Court of Allahabad.

14. On 5 December 1950, another suit was instituted by Paramhans

Ramchandra Das7 (―Suit 2‖) before the Civil Judge, Faizabad seeking reliefs

similar to those in Suit 1. Suit 2 was subsequently withdrawn on 18 September

1990.

15. On 1 April 1950, a Court Commissioner was appointed in Suit 1 to prepare

a map of the disputed premises. On 25 June 1950, the Commissioner submitted

a report, together with two site plans of the disputed premises which were

numbered as Plan nos 1 and 2 to the Trial Court. Both the report and maps

indicate the position at the site and are reproduced below:

Report of the Commissioner

―REPORT
Sir,
I was appointed a commissioner in the above case to
prepare a site plan of the locality and building in suit on
scale. Accordingly, in compliance with the order of the
court, I visited the locality on 16.4.50 and again on 30.4.50
after giving due notice to the counsel of the parties, and
made necessary measurements on the spot. On the first
day of my visit none of the parties were present, but on
the second day defendant no. 1 was present with Shri
Azimullah Khan and Shri Habib Ahmad Khan counsel. At
about noon defendant no. 1 presented an application,
attached herewith, when the measurement work had
already finished.

Plan No. I represents the building in suit shown by the

figure ABCDEF on a larger scale than Plan no.II, which
represents the building with its locality.

6 FAFO No 154 of 1951

7 Regular Suit no 25 of 1950 (subsequently renumbered as Other Original Suit (OOS) No 2 of 1989)

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A perusal of Plan No.I would show that the

building has got two gates, one on the east and the other
on the north, known as ―Hanumatdwar‖ and
―Singhdwar‖ respectively. The ―Hanumatdwar‖ is the
main entrance gate to the building. At this gate there is a
stone slab fixed to the ground containing the inscription
―1-Shri Janma Bhumi nitya yatra,‖ and a big coloured
picture of Shri Hanumanji is placed at the top of the gate.
The arch of this entrance gate, 10‘ in height, rests on two
black kasauti stone pillars, each 4‘ high, marked a and b,
containing images of ―Jai and Vijai‖ respectively
engraved thereon. To the south of this gate on the outer
wall there is engraved a stone image, 5‘ long, known as
―Varah Bhagwan.‖
The northern gate, known as ―Singhdwar,‖ 19‘6‖ in
height, has got at its top images of Garura in the middle
and two lions one on each side.

On entering the main gate there is pucca floor on the

eastern and northern side of the inner building, marked by
letters GHJKL DGB on the north of the eastern floor there
is a neem tree, and to the south of it there is the bhandara
(kitchen). Further south there is a raised pucca platform,
17‘ x 21‘ and 4‘ high, known as ―Ram Chabutra,‖ on
which stands a small temple having idols of Ram and
Janki installed therein. At the south-eastern corner E there
is a joint neem-pipal tree, surrounded by a semi-circular
pucca platform, on which are installed marble idols of
Panchmukhi Mahadev, Parbati, Ganesh and Nandi.

On the northern floor there is a pucca platform, 8‘ x 9‘,

called ―Sita Rasoi.‖ On this platform there is a pucca
chulha with chauka and belna, made of marble, affixed by
its side. To the east of the chulha there are four pairs of
marble foot prints of Ram, Lakshman, Bharat &
Shatrunghna.

The pucca courtyard in front of the inner (main) building is

enclosed by walls NHJK intercepted by iron bars with two
iron bar gates at O and P as shown in the Plan no.I. At the
southern end of this Courtyard there are 14 stairs leading
to the roof of the building, and to the south of the stairs
there is a raised pucca platform 2‘ high, having a urinal
marked U at its south-west corner. There are three arched
gates, X,Y and Z leading to the main building, which is
divided into three portions, having arches at Q and R.
There is a chhajja (projected roof) above the arch Y. 31.

The three arches, Y, Q and R are supported on 12 black

kasauti stone pillars, each 6‘ high, marked with letters c to
n in Plan no. I. The pillars e to m have carvings of kamal
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PART A

flowers thereon. The pillar contains the image of Shankar

Bhagwan in Tandava nritya form and another disfigured
image engraved thereon. The pillar J contained the carved
image of Hanumanji. The pillar N has got the image of
Lord Krishna engraved thereon other pillars have also got
carvings of images which are effaced.

In the central portion of the building at the north-western

corner, there is a pucca platform with two stairs, on which
is installed the idol of Bal Ram (infant Ram).

At the top of the three portions of the building there are

three round domes, as shown separately in Plan no.I,
each on an octagonal base. There are no towers, nor is
there any ghusalkhana or well in the building.

Around the building there is a pucca path known as

parikrama, as shown in yellow in Plan Nos.I & II. On the
west of the parikrama, the land is about 20‘ low, while the
pucca road on the northern side is about 18‘ low. Other
structures found on the locality have been shown in Plan
no.II at their proper places.

The land shown by letters S and T is covered by huts and dhunis

of sadhus. Adjacent to and south of the land shown by letter T,
there is a raised platform, bounded by walls, 4‘ 6‖ high, with a
passage towards west, known as ―shankar chabutra.‖
The pucca well, known as ―Sita koop‖ has got a tin shed
over it, and a stone slab is fixed close to it with the
inscription ―3-Sita koop‖. To the south - west of this well
there is another stone slab fixed into the ground with the
inscription ―4-Sumitra Bhawan‖. On the raised platform
of Sumitra Bhawan there is a stone slab fixed to the
ground, marked, carved with the image of Shesh nag.

The names of the various samadhis and other structures

as noted in Plan No. II were given by sadhus and others
present on the spot.

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

I have the honour to be,

Sir,
Your most obedient servant,
Shiva Shankar Lal,
Faizabad.
Pleader

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25.5.50 Commissioner.‖

Site map (Plan I)

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Site map (Plan II)

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16. On 17 December 1959, Nirmohi Akhara instituted a suit 8 through its

Mahant (―Suit 3‖) before the Civil Judge at Faizabad claiming that its

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

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―absolute right‖ of managing the affairs of the Janmasthan and the

temple had been impacted by the Magistrate‘s order of attachment and by

the appointment of a receiver under Section 145. A decree was sought to

hand over the management and charge of the temple to the plaintiff in Suit

3.

17. On 18 December 1961, the Sunni Central Waqf Board and nine Muslim

residents of Ayodhya filed a suit9 (―Suit 4‖) before the Civil Judge at

Faizabad seeking a declaration that the entire disputed site of the Babri

Masjid was a public mosque and for the delivery of possession upon

removal of the idols.

18. On 6 January 1964, the trial of Suits 1, 3 and 4 was consolidated and Suit

4 was made the leading case.

19. On 25 January 1986, an application was filed by one Umesh Chandra

before the Trial Court for breaking open the locks placed on the grill-brick wall

and for allowing the public to perform darshan within the inner courtyard. On 1

February 1986, the District Judge issued directions to open the locks and to

provide access to devotees for darshan inside the structure. In a Writ Petition 10

filed before the High Court challenging the above order, an interim order was

passed on 3 February 1986 directing that until further orders, the nature of the

property as it existed shall not be altered.

9 Regular Suit No. 12 of 1961 (subsequently renumbered as OOS No. 4 of 1989)

10
Civil Misc. Writ No. 746 of 1986

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20. On 1 July 1989, a Suit10 (―Suit 5‖) was brought before the Civil Judge,

Faizabad by the deity (―Bhagwan Shri Ram Virajman‖) and the birth-place

(―Asthan Shri Ram Janam Bhumi, Ayodhya‖), through a next friend for a

declaration of title to the disputed premises and to restrain the defendants from

interfering with or raising any objection to the construction of a temple. Suit 5 was

tried with the other suits.

21. On 10 July 1989, all suits were transferred to the High Court of Judicature

at Allahabad. On 21 July 1989, a three judge Bench was constituted by the Chief

Justice of the High Court for the trial of the suits. On an application by the State

of Uttar Pradesh, the High Court passed an interim order on 14 August 1989,

directing the parties to maintain status quo with respect to the property in dispute.

22. During the pendency of the proceedings, the State of Uttar Pradesh

acquired an area of 2.77 acres comprising of the disputed premises and certain

adjoining areas. This was effected by notifications dated 7 October 1991 and 10

October 1991 under Sections 4(1), 6 and 17(4) of the Land Acquisition Act 1894

(―Land Acquisition Act‖). The acquisition was for ‗development and providing

amenities to pilgrims in Ayodhya‘. A Writ Petition was filed before the High Court

challenging the acquisition. By a judgment and order dated 11 December 1992,

the acquisition was set aside.

23. A substantial change took place in the position at the site on 6 December

1992. A large crowd destroyed the mosque, boundary wall, and Ramchabutra. A

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

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makeshift structure of a temple was constructed at the place under the erstwhile

central dome. The idols were placed there.

Acquisition by the Central Government and Ismail Faruqui‘s case

24. The Central Government acquired an area of about 68 acres, including the

premises in dispute, by a legislation called the Acquisition of Certain Area at

Ayodhya Act 1993 (―Ayodhya Acquisition Act 1993‖). Sections 3 and 4

envisaged the abatement of all suits which were pending before the High Court.

Simultaneously, the President of India made a reference to this Court under

Article 143 of the Constitution. The reference was on ―(w)hether a Hindu temple

or any Hindu religious structure existed prior to the construction of the Ram

Janam Bhoomi and Babari Masjid (including the premises of the inner and outer

courtyards on such structure) in the area on which the structure stands…‖.

25. Writ petitions were filed before the High Court of Allahabad and this Court

challenging the validity of the Act of 1993. All the petitions and the reference by

the President were heard together and decided by a judgment dated 24 October

1994. The decision of a Constitution Bench of this Court, titled Dr M Ismail

Faruqui v Union of India11 held Section 4(3), which provided for the abatement

of all pending suits as unconstitutional. The rest of the Act of 1993 was held to be

valid. The Constitution Bench declined to answer the Presidential reference and,

as a result, all pending suits and proceedings in relation to the disputed premises

stood revived. The Central Government was appointed as a statutory receiver for
11 (1994) 6 SCC 360

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the maintenance of status quo and to hand over the disputed area in terms of the

adjudication to be made in the suits. The conclusions arrived at by the

Constitution Bench are extracted below:

―96. ... (1)(a) Sub-section (3) of Section 4 of the Act abates

all pending suits and legal proceedings without providing for
an alternative dispute resolution mechanism for resolution of
the disputes between the parties thereto. This is an extinction
of the judicial remedy for resolution of the dispute amounting
to negation of rule of law. Sub-section (3) of Section 4 of the
Act is, therefore, unconstitutional and invalid.

(1)(b) The remaining provisions of the Act do not suffer from

any invalidity on the construction made thereof by us.
Subsection (3) of Section 4 of the Act is severable from the
remaining Act. Accordingly, the challenge to the constitutional
validity of the remaining Act, except for sub-section (3) of Sec.
4, is rejected.

(2) Irrespective of the status of a mosque under the

Muslim law applicable in the Islamic countries, the status of a
mosque under the Mahomedan Law applicable in secular
India is the same and equal to that of any other place of
worship of any religion; and it does not enjoy any greater
immunity from acquisition in exercise of the sovereign or
prerogative power of the State, than that of the places of
worship of the other religions.

(3) The pending suits and other proceedings relating to

the disputed area within which the structure (including the
premises of the inner and outer courtyards of such structure),
commonly known as the Ram Janma Bhumi - Babri Masjid,
stood, stand revived for adjudication of the dispute therein,
together with the interim orders made, except to the extent
the interim orders stand modified by the provisions of Section
7 of the Act.

(4) The vesting of the said disputed area in the Central

Government by virtue of Section 3 of the Act is limited, as a
statutory receiver with the duty for its management and
administration according to Section 7 requiring maintenance
of status quo therein under sub-section (2) of Section 7 of the
Act. The duty of the Central Government as the statutory
receiver is to handover the disputed area in accordance with
Section 6 of the Act, in terms of the adjudication made in the
suits for implementation of the final decision therein. This is

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the purpose for which the disputed area has been so

acquired.

(5) The power of the courts in making further interim

orders in the suits is limited to, and circumscribed by, the area
outside the ambit of Section 7 of the Act.

(6) The vesting of the adjacent area, other than the

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

(7) The meaning of the word "vest" in Section 3 and

Section 6 of the Act has to be so understood in the different
contexts.

(8) Section 8 of the Act is meant for payment of

compensation to owners of the property vesting absolutely in
the Central Government, the title to which is not in dispute
being in excess of the disputed area which alone is the
subject matter of the revived suits. It does not apply to the
disputed area, title to which has to be adjudicated in the suits
and in respect of which the Central Government is merely the
statutory receiver as indicated, with the duty to restore it to
the owner in terms of the adjudication made in the suits.

(9) The challenge to acquisition of any part of the

adjacent area on the ground that it is unnecessary for
achieving the professed objective of settling the long standing
dispute cannot be examined at this stage. However, the area
found to be superfluous on the exact area needed for the
purpose being determined on adjudication of the dispute,
must be restored to the undisputed owners.

(10) Rejection of the challenge by the undisputed owners

to acquisition of some religious properties in the vicinity of the
disputed area, at this stage is with the liberty granted to them
to renew their challenge, if necessary at a later appropriate
stage, in cases of continued retention by Central Government
of their property in excess of the exact area determined to be
needed on adjudication of the dispute.

(11) Consequently, the Special Reference No. 1 of 1993

made by the President of India under Art. 143(1) of the

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Constitution of India is superfluous and unnecessary and

does not require to be answered. For this reason, we very
respectfully decline to answer it and return the same.

(12) The questions relating to the constitutional validity of

the said Act and maintainability of the Special Reference are
decided in these terms.‖

The proceedings before the High Court

26. The recording of oral evidence before the High Court commenced on 24

July 1996. During the course of the hearings, the High Court issued directions on

23 October 2002 to the Archaeological Survey of India (―ASI‖) to carry out a

scientific investigation and have the disputed site surveyed by Ground

Penetrating Technology or Geo-Radiology (―GPR‖). The GPR report dated 17

February 2003 indicated a variety of ―anomalies‖ which could be associated

with ―ancient and contemporaneous structures‖ such as pillars, foundations,

wall slabs and flooring extending over a large portion of the disputed site. In order

to facilitate a further analysis, the High Court directed the ASI on 5 March 2003 to

undertake the excavation of the disputed site. A fourteen-member team was

constituted, and a site plan was prepared indicating the number of trenches to be

laid out and excavated. On 22 August 2003, the ASI submitted its final report.

The High Court heard objections to the report.

27. Evidence, both oral and documentary, was recorded before the High Court.

As one of the judges, Justice Sudhir Agarwal noted, the High Court had before it

533 exhibits and depositions of 87 witnesses traversing 13,990 pages. Besides

this, counsel relied on over a thousand reference books in Sanskrit, Hindi, Urdu,

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Persian, Turkish, French and English, ranging from subjects as diverse as

history, culture, archaeology and religion. The High Court ensured that the

innumerable archaeological artefacts were kept in the record room. It received

dozens of CDs and other records which the three judges of the High

Court have marshalled.

The decision of the High Court

28. On 30 September 2010, the Full Bench of the High Court comprising of

Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the

judgment, which is in appeal. Justice S U Khan and Justice Sudhir Agarwal held

―all the three sets of parties‖ – Muslims, Hindus and Nirmohi Akhara - as joint

holders of the disputed premises and allotted a one third share to each of them in

a preliminary decree. Justice S U Khan held thus:

―Accordingly, all the three sets of parties, i.e. Muslims,

Hindus and Nirmohi Akhara are declared joint title holders of
the property/ premises in dispute as described by letters A B
C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal,
Pleader/ Commissioner appointed by Court in Suit No.1 to the
extent of one third share each for using and managing the
same for worshipping. A preliminary decree to this effect is
passed.

However, it is further declared that the portion below the

central dome where at present the idol is kept in makeshift
temple will be allotted to Hindus in final decree.

It is further directed that Nirmohi Akhara will be allotted share

including that part which is shown by the words Ram
Chabutra and Sita Rasoi in the said map.

It is further clarified that even though all the three parties are
declared to have one third share each, however if while
allotting exact portions some minor adjustment in the share is
to be made then the same will be made and the adversely
affected party may be compensated by allotting some portion

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of the adjoining land which has been acquired by the Central

Government.

The parties are at liberty to file their suggestions for actual

partition by metes and bounds within three months.

List immediately after filing of any suggestion/ application for

preparation of final decree after obtaining necessary
instructions from Hon'ble the Chief Justice.

Status quo as prevailing till date pursuant to Supreme Court

judgment of Ismail Farooqui (1994(6) Sec 360) in all its
minutest details shall be maintained for a period of three
months unless this order is modified or vacated earlier.‖

Justice Sudhir Agarwal partly decreed Suits 1 and 5. Suits 3 and 4 were

dismissed as being barred by limitation. The learned judge concluded with the

following directions:

―4566…
(i) It is declared that the area covered by the central
dome of the three domed structure, i.e., the disputed structure
being the deity of Bhagwan Ram Janamsthan and place of
birth of Lord Rama as per faith and belief of the Hindus,
belong to plaintiffs (Suit-5) and shall not be obstructed or
interfered in any manner by the defendants. This area is
shown by letters AA BB CC DD in Appendix 7 to this
judgment.

(ii) The area within the inner courtyard denoted by letters

B C D L K J H G in Appendix 7 (excluding (i) above) belong to
members of both the communities, i.e., Hindus (here plaintiffs,
Suit-5) and Muslims since it was being used by both since
decades and centuries. It is, however, made clear that for the
purpose of share of plaintiffs, Suit-5 under this direction the
area which is covered by (i) above shall also be included.

(iii) The area covered by the structures, namely, Ram

Chabutra, (EE FF GG HH in Appendix 7) Sita Rasoi (MM NN
OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix
7) in the outer courtyard is declared in the share of Nirmohi
Akhara (defendant no. 3) and they shall be entitled to
possession thereof in the absence of any person with better
title.
(iv) The open area within the outer courtyard (A G H J K L
E F in Appendix 7) (except that covered by (iii) above) shall
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be shared by Nirmohi Akhara (defendant no. 3) and plaintiffs

(Suit-5) since it has been generally used by the Hindu people
for worship at both places.

(iv-a) It is however made clear that the share of muslim

parties shall not be less than one third (1/3) of the total area
of the premises and if necessary it may be given some area
of outer courtyard. It is also made clear that while making
partition by metes and bounds, if some minor adjustments are
to be made with respect to the share of different parties, the
affected party may be compensated by allotting the requisite
land from the area which is under acquisition of the
Government of India.

(v) The land which is available with the Government of

India acquired under Ayodhya Act 1993 for providing it to the
parties who are successful in the suit for better enjoyment of
the property shall be made available to the above concerned
parties in such manner so that all the three parties may utilise
the area to which they are entitled to, by having separate
entry for egress and ingress of the people without disturbing
each others rights. For this purpose the concerned parties
may approach the Government of India who shall act in
accordance with the above directions and also as contained
in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).

(vi) A decree, partly preliminary and partly final, to the

effect as said above (i to v) is passed. Suit-5 is decreed in
part to the above extent. The parties are at liberty to file their
suggestions for actual partition of the property in dispute in
the manner as directed above by metes and bounds by
submitting an application to this effect to the Officer on
Special Duty, Ayodhya Bench at Lucknow or the Registrar,
Lucknow Bench, Lucknow, as the case may be.

(vii) For a period of three months or unless directed

otherwise, whichever is earlier, the parties shall maintain
status quo as on today in respect of property in dispute.‖

Justice D V Sharma decreed Suit 5 in its entirety. Suits 3 and 4 were dismissed as

being barred by limitation. Justice D V Sharma concluded:

―Plaintiff‘s suit is decreed but with easy costs. It is hereby

declared that the entire premises of Sri Ram Janm Bhumi at
Ayodhya as described and delineated in annexure Nos. 1 and
2 of the plaint belong to the plaintiff Nos. 1 and 2, the deities.
The defendants are permanently restrained from interfering
with, or raising any objection to, or placing any obstruction in

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the construction of the temple at Ram Janm Bhumi Ayodhya

at the site, referred to in the plaint.‖
The parties preferred multiple Civil Appeals and Special Leave Petitions before this

Court against the judgment of the High Court.

Proceedings before this Court

29. On 9 May 2011, a two judge Bench of this Court admitted several appeals

and stayed the operation of the judgment and decree of the Allahabad High

Court. During the pendency of the appeals, parties were directed to maintain

status quo with respect to the disputed premises in accordance with the

directions issued in Ismail Faruqui. The Registry of this Court was directed to

provide parties electronic copies of the digitised records.

30. On 10 September 2013, 24 February 2014, 31 October 2015 and 11

August 2017, this Court issued directions for summoning the digital record of the

evidence and pleadings from the Allahabad High Court and for furnishing

translated copies to the parties. On 10 August 2015, a three judge Bench of this

Court allowed the Commissioner, Faizabad Division to replace the old and worn

out tarpaulin sheets over the makeshift structure under which the idols were

placed with new sheets of the same size and quality.

31. On 5 December 2017, a three judge Bench of this Court rejected the plea

that the appeals against the impugned judgement be referred to a larger Bench in

view of certain observations of the Constitution Bench in Ismail Faruqui. On 14

March 2018, a three judge Bench heard arguments on whether the judgment in

Ismail Faruqui required reconsideration. On 27 September 2018, the three judge

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Bench of this Court by a majority of 2:1 declined to refer the judgment in Ismail

Faruqui for reconsideration and listed the appeals against the impugned judgement

for hearing.

32. By an administrative order dated 8 January 2019 made pursuant to the

provisions of Order VI Rule 1 of the Supreme Court Rules, 2013, the Chief

Justice of India constituted a five judge Bench to hear the appeals. On 10

January 2019, the Registry was directed to inspect the records and if required,

engage official translators. On 26 February 2019, this Court referred the parties

to a Court appointed and monitored mediation to explore the possibility of

bringing about a permanent solution to the issues raised in the appeals. On 8

March 2019, a panel of mediators comprising of (i) Justice Fakkir Mohamed

Ibrahim Kalifulla, a former Judge of this Court; (ii) Sri Sri Ravi Shankar; and (iii)

Mr Sriram Panchu, Senior Advocate was constituted. Time granted to the

mediators to complete the mediation proceedings was extended on 10 May 2019.

Since no settlement had been reached, on 2 August 2019, the hearing of the

appeals was directed to commence from 6 August 2019. During the course of

hearing, a report was submitted by the panel of mediators that some of the

parties desired to settle the dispute. This Court by its order dated 18 September

2019 observed that while the hearings will proceed, if any parties desired to settle

the dispute, it was open for them to move the mediators and place a settlement, if

it was arrived at, before this Court. Final arguments were concluded in the batch

of appeals on 16 October 2019. On the same day, the mediation panel submitted

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a report titled ―Final Report of the Committee‖ stating that a settlement had

been arrived at by some of the parties to the present dispute. The settlement was

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PART B

signed by Mr Zufar Ahmad Faruqi, Chairman of the Sunni Central Waqf Board.

Though under the settlement, the Sunni Central Waqf Board agreed to relinquish

all its rights, interests and claims over the disputed land, this was subject to the

fulfilment of certain conditions stipulated. The settlement agreement received by

this Court from the mediation panel has not been agreed to or signed by all the

parties to the present dispute. Moreover, it is only conditional on certain

stipulations being fulfilled. Hence, the settlement cannot be treated to be a

binding or concluded agreement between the parties to the dispute. We,

however, record our appreciation of the earnest efforts made by the members of

the mediation panel in embarking on the task entrusted by this Court. In bringing

together the disputants on a common platform for a free and frank dialogue, the

mediators have performed a function which needs to be commended. We also

express our appreciation of the parties who earnestly made an effort to pursue

the mediation proceedings.

B. An overview of the suits

33. Before examining the various contentions of the parties before this Court, we

first record the procedural history, substantive claims and reliefs prayed for in the

pleadings of the three Suits before this Court.

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

34. The suit was instituted on 13 January 1950 by Gopal Singh Visharad, a

resident of Ayodhya in his capacity as a ―follower of Sanatan Dharm‖ seeking:

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(i) A declaration of his entitlement to worship and seek the darshan of Lord

Ram, ―according to religion and custom‖ at the Janmabhumi temple

without hindrance; and

(ii) A permanent and perpetual injunction restraining defendant nos 1 to 10

from removing the idols of the deity and other idols from the place where

they were installed; from closing the way leading to the idols; or interfering

in worship and darshan.

Defendant nos 1 to 5 are Muslim residents of Ayodhya; defendant no 6 is the

State of Uttar Pradesh; defendant no 7 is the Deputy Commissioner of Faizabad;

defendant no 8 is the Additional City Magistrate, Faizabad; defendant no 9 is the

Superintendent of Police, Faizabad; defendant no 10 is the Sunni Central Waqf

Board and defendant no 11 is the Nirmohi Akhara.

The case of the plaintiff in Suit 1 is that, as a resident of Ayodhya, he was

worshipping the idol of Lord Ram and Charan Paduka (foot impressions) ―in that

place of Janambhumi‖. The boundaries of the ‗disputed place‘ as described in

the plaint are as follows:

―Disputed place:

East: Store and Chabutra of Ram Janam Bhumi

West: Parti
North: Sita Rasoi
South: Parti.‖

The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when

the employees of the government are alleged to have unlawfully prevented the

plaintiff ―from going inside the place‖ and exercising his right of worship. It was

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alleged that the ―State‖ adopted this action at the behest of the Muslim

residents represented by defendant nos 1 to 5, as a result of which the Hindus

were stated to been deprived of their ―legitimate right of worship‖. The plaintiff

apprehended that the idols, including the idol of Lord Ram, would be removed.

These actions were alleged to constitute a ―direct attack on the right and title of

the plaintiff‖ and were stated to be an ―oppressive act‖, contrary to law.

35. Denying the allegations contained in the plaint, defendant nos 1 to 5 stated

in their written statements that:

(i) The property in respect of which the case has been instituted is not

Janmabhumi but a mosque constructed by Emperor Babur. The mosque

was built in 1528 on the instructions of Emperor Babur by Mir Baqi, who

was the Commander of Babur‘s forces, following the conquest of the

subcontinent by the Mughal emperor;

(ii) The mosque was dedicated as a waqf for Muslims, who have a right to

worship there. Emperor Babur laid out annual grants for the maintenance

and expenditure of the mosque, which were continued and enhanced by

the Nawab of Awadh and the British Government;

(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant

Raghubar Das only in respect of the Ramchabutra and hence the claim

that the entire building represented the Janmasthan was baseless. As a

consequence of the dismissal of the Suit on 24 December 1885, ―the

case respecting the Chabutra was not entertained‖;

(iv) The Chief Commissioner Waqf appointed under the U.P. Muslim Waqf Act

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1936 had held the mosque to be a Sunni Waqf;

(v) Muslims have always been in possession of the mosque. This position

began in 1528 and continued thereafter, and consequently, ―Muslims are

in possession of that property … by way of an adverse possession‖;

(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which

point there were no idols under the central dome. If any person had placed

any idol inside the mosque with a mala fide intent, ―the degradation of the

mosque is evident and the accused persons are liable to be prosecuted‖;

(vii) Any attempt of the plaintiff or any other person to enter the mosque to offer

worship or for darshan would violate the law. Proceedings under Section

145 of the CrPC 1898 had been initiated; and

(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is

without basis as there exists, for quite long, another temple with idols of

Lord Ram and others, which is the actual place of the Janmasthan of Lord

Ram.

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

(i) The property in suit known as Babri Masjid has been used as a mosque for

the purpose of worship by Muslims for a long period and has not been

used as a temple of Lord Ram;

(ii) On the night of 22 December 1949, the idols of Lord Ram were

surreptitiously placed inside the mosque imperilling public peace and

tranquillity. On 23 December 1949, the City Magistrate passed an order

under Section 144 of CrPC 1898 which was followed by an order of the

same date passed by the Additional City Magistrate under Section 145

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attaching the disputed property. These orders were passed to maintain

public peace; and

(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal

Board, Faizabad-cum-Ayodhya as a receiver of the property.

Similar written statements were filed by defendant no 8, the Additional City

Magistrate and defendant no 9, the Superintendent of Police.

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

(i) The building in dispute is not the Janmasthan of Lord Ram and no idols

were ever installed in it;

(ii) The property in the suit was a mosque known as the Babri mosque

constructed during the regime of Emperor Babur who had laid out annual

grants for its maintenance and expenditure and they were continued and

enhanced by the Nawab of Awadh and the British Government;

(iii) On the night of 22-23 December 1949, the idols were surreptitiously

brought into the mosque;

(iv) The Muslims alone had remained in possession of the mosque from 1528

up to the date of the attachment of the mosque under Section 145 on 29

December 1949. They had regularly offered prayers up to 21 December

1949 and Friday prayers up to 16 December 1949;

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

(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi

of Lord Ram as the claim in the Suit of 1885 instituted by Mahant

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Raghubar Das (described to be the plaintiff‘s predecessor) had been

confined only to the Ramchabutra measuring seventeen by twenty-one

feet outside the mosque; and

(vii) There already existed a Ram Janmasthan Mandir, a short distance away

from Babri Masjid.

In the plaintiff‘s replication to the written statement of defendant nos 1 to 5, it was

averred that the disputed site has never been used as a mosque since 1934. It

was further stated that it was ―common knowledge‖ that Hindus have been in

continuous possession by virtue of which the claim of the defendants has ceased.

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

36. The suit was instituted on 17 December 1959 by Nirmohi Akhara through

Mahant Jagat Das seeking a decree for the removal of the receiver from the

management and charge of the Janmabhumi temple and for delivering it to the

plaintiff.

Defendant no 1 in Suit 3 is the receiver; defendant no 2 is the State of Uttar

Pradesh; defendant no 3 is the Deputy Commissioner, Faizabad; defendant no 4

is the City Magistrate, Faizabad; defendant no 5 is the Superintendent of Police,

Faizabad; defendant nos 6 to 8 are Muslim residents of Ayodhya; defendant no 9

is the Sunni Central Waqf Board and defendant no 10 is Umesh Chandra

Pandey.

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The cause of action is stated to have arisen on 5 January 1950 when the

management and charge of the Janmabhumi temple was taken away by the City

Magistrate and entrusted to the receiver. Nirmohi Akhara pleaded that:

(i) There exists in Ayodhya ―since the days of yore‖ an ancient Math or

Akhara of Ramanandi Bairagis called the Nirmohis. This is a religious

establishment of a public character;

(ii) The Janmasthan, commonly known as Janmabhumi, is the birth-place of

Lord Ram and belongs to and has always been managed by Nirmohi

Akhara;

(iii) The Janmasthan is of ancient antiquity lying within the boundaries shown

by the letters A B C D in the sketch map appended to the plaint within

which stands the ―temple building‖ marked by the letters E F G K P N M L

E. The building denoted by the letters E F G H I J K L E is the main

Janmabhumi temple, where the idols of Lord Ram with Lakshman,

Hanuman and Saligram have been installed. The temple building has been

in the possession of Nirmohi Akhara and only Hindus have been allowed to

enter the temple and make offerings such as money, sweets, flowers and

fruits. Nirmohi Akhara has been receiving these offerings through its

pujaris;

(iv) Nirmohi Akhara is a Panchayati Math of the Ramanandi sect of Bairagis

which is a religious denomination. The customs of Nirmohi Akhara have

been reduced to writing by a registered deed dated 19 March 1949;

(v) Nirmohi Akhara owns and manages several temples;

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(vi) No Mohammedan has been allowed to enter the temple building since

1934; and

(vii) Acting under the provisions of Section 145 of the CrPC 1898, the City

Magistrate placed the main temple and all the articles in it under the charge of

the first defendant as receiver on 5 January 1950. As a consequence, the

plaintiffs have been wrongfully deprived of the management and charge of the

temple.

37. In the written statement filed on behalf of defendant nos 6 to 8, Muslim

residents of Ayodhya, it was stated that Babri Masjid was constructed by Emperor

Babur in 1528 and has been constituted as a waqf, entitling Muslims to offer

prayers. Moreover, it was submitted that:

(i) The Suit of 1885 by Raghubar Mahant Das was confined to Ramchabutra

and has been dismissed by the Sub-Judge, Faizabad;

(ii) The property of the mosque was constituted as a waqf under the U.P.

Muslim Waqf Act 1936;

(iii) Muslims have been in continuous possession of the mosque since 1528 as

a consequence of which all the rights of the plaintiffs have been

extinguished;

(iv) On the eastern and northern sides of the mosque, there are Muslim

graves;

(v) Namaz was continuously offered in the property until 16 December 1949

and the character of the mosque will not stand altered if an idol has been

installed surreptitiously; and

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(vi) There is another temple at Ayodhya which is known as the Janmasthan

temple of Lord Ram which has been in existence for a long time.

The plaint was amended to incorporate the averment that on 6 December 1992

―the main temple was demolished by some miscreants who had no religion,

caste or creed‖.

In the replication filed by Nirmohi Akhara to the joint written statement of

defendant nos 6 to 8, the existence of a separate Janmasthan temple was

denied. It was stated that the Janmasthan temple is situated to the North of the

Janmabhumi temple.

A written statement was filed in the suit by Defendant no 9, the Sunni Central

Waqf Board denying the allegations.

In the written statement filed by defendant no 10, Umesh Chandra Pandey, it was

submitted:

(i) The Janmasthan is a ―holy place of worship‖ and belongs to the deity of

Shri Ram Lalla Virajman for a long period of time. The temple is possessed

and owned by the deity. Lord Ram is the principal deity of Ram

Janmabhumi;

(ii) Nirmohi Akhara has never managed the Janmasthan;

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(iii) In 1857, the British Government attempted to divide the building by

creating an inner enclosure and describing the boundary within it as a

mosque but no ―true Muslim‖ could have offered prayers there;

(iv) The presence of Kasauti pillars and the carvings of Gods and Goddess on

the pillars indicated that the place could not be used by a ―true Muslim‖

for offering prayers;

(v) The place was virtually landlocked by a Hindu temple in which worship of

the deity took place;

(vi) The Suit of the Nirmohi Akhara was barred by limitation having been

instituted in 1959, though the cause of action arose on 5 January 1950;

and

(vii) Nirmohi Akhara did not join the proceedings under Section 145 nor did

they file a revision against the order passed by the Additional City

Magistrate.

In the replication filed by Nirmohi Akhara to the written statement of defendant no

10, there was a detailed account of the founding of the denomination. Following

the tradition of Shankaracharya since the seventh century CE, the practice of

setting up Maths was followed by Ramanujacharya and later, by Ramanand.

Ramanand founded a sect of Vaishnavs known as ‗Ramats‘, who worship Lord

Ram. The spiritual preceptors of the Ramanandi sect of Bairagis established

three ‗annis‘ namely, the (i) Nirmohi; (ii) Digamber; and (iii) Nirwani Akharas.

These Akharas are Panchayati Maths. Nirmohi Akhara owns the Ram

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Janmasthan temple which is associated with the birth-place of Lord Ram. The

outer enclosure was owned and managed by Nirmohi Akhara until the

proceedings under Section 145 were instituted.

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

38. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf Board

and nine Muslim residents of Ayodhya. It has been averred that the suit has been

instituted on behalf of the entire Muslim community together with an application

under Order I Rule 8 of the CPC. As amended, the following reliefs have been

sought in the plaint:

―(a) A declaration to the effect that the property indicated by

letters A B C D in the sketch map attached to the plaint is
public mosque commonly known as ‗Babari Masjid‘ and that
the land adjoining the mosque shown in the sketch map by
letters E F G H is a public Muslim graveyard as specified in
para 2 of the plaint may be decreed.
(b) That in case in the opinion of the Court delivery of
possession is deemed to be the proper remedy, a decree for
delivery of possession of the mosque and graveyard in suit
by removal of the idols and other articles which the Hindus
may have placed in the mosque as objects of their worship
be passed in plaintiff‘s favour, against the defendants.

(bb) That the statutory Receiver be commanded to hand over

the property in dispute described in Schedule ‗A‘ of the
Plaint by removing the unauthorized structures erected
thereon.‖

[Note : Prayer (bb) was inserted by an amendment to the plaint pursuant to the

order of the High Court dated 25 May 1995].

Defendant no 1 in Suit 4 is Gopal Singh Visharad; defendant no 2 is Ram

Chander Dass Param Hans; defendant no 3 is Nirmohi Akhara; defendant no 4 is

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Mahant Raghunath Das; defendant no 5 is the State of U.P.; defendant no 6 is

the Collector, Faizabad; defendant no 7 is the City Magistrate, Faizabad;

defendant no 8 is the Superintendent of Police of Faizabad; defendant no 9 is

Priyadutt Ram; defendant no 10 is the President, Akhil Bharat Hindu Mahasabha;

defendant no 13 is Dharam Das; defendant no 17 is Ramesh Chandra Tripathi;

and defendant no 20 is Madan Mohan Gupta.

The suit is based on the averment that in Ayodhya, there is an ancient historic

mosque known commonly as Babri Masjid which was constructed by Babur more

than 433 years ago following his conquest of India and the occupation of its

territories. It has been averred that the mosque was built for the use of the

Muslims in general as a place of worship and for the performance of religious

ceremonies. The main construction of the mosque is depicted by the letters A B

C D on the plan annexed to the plaint. Adjoining the land is a graveyard.

According to the plaintiffs, both the mosque and the graveyard vest in the

Almighty and since the construction of the mosque, it has been used by the

Muslims for offering prayers while the graveyard has been used for burial. The

plaint alleged that outside the main building of the mosque, Hindu worship was

being conducted at a Chabutra admeasuring 17x21 feet on which there was a

small wooden structure in the form of a tent.

The plaint contains a recital of the Suit of 1885 by Mahant Raghubhar Das for

permission to construct a temple on the Chabutra which was dismissed. The

plaintiffs in Suit 4 contend that the Mahant sued on behalf of himself, the

Janmasthan and all persons interested in it, and the decision operates as res

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judicata as the matter directly and substantially in issue was the existence of the

Babri Masjid, and the rights of the Hindus to construct a temple on the land

adjoining the mosque.

According to the plaintiffs, assuming without admitting that there existed a Hindu

temple as alleged by the defendants on the site of which the mosque was built

433 years ago by Emperor Babur, the Muslims by virtue of their long exclusive

and continuous possession commencing from the construction of the mosque

and ensuing until its desecration perfected their title by adverse possession. The

plaint then proceeds to make a reference to the proceedings under Section 145

of CrPC 1898. As a result of the order of injunction in Suit 2 of 1950, Hindus have

been permitted to perform puja of the idols placed within the mosque but Muslims

have been prevented from entering.

According to the plaintiffs, the cause of action for the suit arose on 23 December

1949 when the Hindus are alleged to have wrongfully entered the mosque and

desecrated it by placing idols inside the mosque. The injuries are claimed to be

continuing in nature. As against the state, the cause of action is alleged to have

arisen on 29 December 1949 when the property was attached by the City

Magistrate who handed over possession to the receiver. The receiver assumed

charge on 5 January 1950.

The reliefs which have been claimed in the suit are based on the above

averments. Essentially, the case of the plaintiffs proceeds on the plea that

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(i) The mosque was constructed by Babur 433 years prior to the suit as a

place of public worship and has been continuously used by Muslims for

offering prayers; and

(ii) Even assuming that there was an underlying temple which was

demolished to give way for the construction of the mosque, the Muslims

have perfected their title by adverse possession. On this foundation, the

plaintiffs claim a declaration of title and, in the event that such a prayer is

required, a decree for possession.

39. In the written statement filed by Gopal Singh Visharad, the first defendant

(who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in

possession of the mosque, it ceased in 1934. The Hindus claim to be in

possession after 1934 and their possession is stated to have ripened into

adverse possession. According to the written statement, no prayers were offered

in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said

to represent the entire Hindu community. Hindu puja is stated to be continuing

inside the structure, which is described as a temple since 1934 and admittedly

since January 1950, following the order of the City Magistrate. In an additional

written statement, a plea has been taken that the UP Muslim Waqf Act 1936 is

ultra vires. It has been averred that any determination under the Act cannot

operate to decide a question of title against non-Muslims. In a subsequent written

statement, it has been stated that Hindus have worshipped the site of the

Janmabhumi since time immemorial; the Muslims were never in possession of

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the Janmabhumi temple and, if they were in possession, it ceased in 1934. The

suit is alleged to be barred by limitation.

As regards the Suit of 1885, it has been submitted that the plaintiff was not suing

in a representative capacity and was only pursuing his personal interest.

The written statement of Nirmohi Akhara denies the existence of a mosque.

Nirmohi Akhara states that it was unaware of any suit filed by Mahant Raghubar

Das. According to it, a mosque never existed at the site and hence there was no

occasion for the Muslim community to offer prayers till 23 December 1949. It is

urged that what the property described as Babri mosque is and has always been

a temple of Janmabhumi with idols of Hindu Gods installed within. According to

the written statement, the temple on Ramchabutra had been judicially recognised

in the Suit of 1885. It was urged that the Janmabhumi temple was always in the

possession of Nirmohi Akhara and none else but the Hindus were allowed to

enter and offer worship. The offerings are stated to have been received by the

representative of Nirmohi Akhara. After the attachment, only the pujaris of

Nirmohi Akhara are claimed to have been offering puja to the idols in the temple.

The written statement contains a denial of Muslim worship in the structure at least

since 1934 and it is urged that Suit 4 is barred by limitation. In the additional

written statement, Nirmohi Akhara has denied that the findings in the Suit of 1885

operate as res judicata. There is a denial of the allegation that the Muslims have

perfected their title by adverse possession.

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The State of Uttar Pradesh filed its written statement to the effect that the

government is not interested in the property in dispute and does not propose to

contest the suit.

In the written statement filed on behalf of the tenth defendant, Akhil Bhartiya

Hindu Mahasabha, it has been averred that upon India regaining independence,

there is a revival of the original Hindu law as a result of which the plaintiffs cannot

claim any legal or constitutional right. In an additional written statement, the tenth

defendant denies the incident of 22 December 1949 and claims that the idols

were in existence at the place in question from time immemorial. According to the

written statement, the site is the birth-place of Lord Ram and no mosque could

have been constructed at the birth-place.

The written statement by Abhiram Das and by Dharam Das, who claims to be his

chela, questions the validity of the construction of a mosque at the site of Ram

Janmabhumi. According to the written statement, the site is landlocked and

surrounded by places of Hindu worship and hence such a building cannot be a

valid mosque in Muslim law. The written statement contains a denial of a valid

waqf on the ground that a waqf cannot be based on adverse possession.

According to the written statement, at Ram Janmabhumi there was an ancient

temple tracing back to the rule of Vikramaditya which was demolished by Mir

Baqi. It has been averred that Ram Janmabhumi is indestructible as the deity is

divine and immortal. In spite of the construction of the mosque, it has been

submitted, the area has continued to be in the possession of the deities and no

one could enter the three domed structure except after passing through Hindu

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places of worship. The written statements filed by the other Hindu defendants

broadly follow similar lines. Replications were filed to the written statements of

the Hindu parties.

Suit 5 – OOS no 5 of 1989 (Regular Suit no 236 of 1989)

40. The suit was instituted on 1 July 1989 claiming the following reliefs:

―(A) A declaration that the entire premises of Sri Rama

Janma Bhumi at Ayodhya, as described and delineated in
Annexure
I, II and III belongs to the plaintiff Deities.

(B) A perpetual injunction against the Defendants prohibiting

them from interfering with, or raising any objection to, or
placing any obstruction in the construction of the new Temple
building at Sri Rama Janma Bhumi, Ayodhya, after
demolishing and removing the existing buildings and
structures etc., situate thereat, in so far as it may be
necessary or expedient to do so for the said purpose.‖

This suit has been instituted in the name of ―Bhagwan Sri Ram Virajman at Sri

Ram Janmabhumi, Ayodhya also called Bhagwan Sri Ram Lalla Virajman‖. The

deity so described is the first plaintiff. The second plaintiff is described as

―Asthan

Sri Rama Janambhumi, Ayodhya‖. Both the plaintiffs were represented by Sri

Deoki Nandan Agrawala, a former judge of the Allahabad High Court as next

friend. The next friend of the first and second plaintiffs is impleaded as the third

plaintiff.

The defendants to the suit include:

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

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

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(iii) Hindu and Muslim residents of Ayodhya; and

(iv) The State of Uttar Pradesh, the Collector and Senior Superintendent of

Police.

Several other Hindu entities including the All India Hindu Mahasabha and a Trust

described as the Sri Ram Janmabhumi Trust, are parties to the Suit as is the

Shia Central Board of Waqfs.

The principal averments in Suit 5 are that:

(i) The first and second plaintiffs are juridical persons: Lord Ram is the

presiding deity of the place and the place is itself a symbol of worship;

(ii) The identification of Ram Janmabhumi, for the purpose of the plaint is

based on the site plans of the building, premises and adjacent area

prepared by Sri Shiv Shankar Lal, who was appointed as Commissioner by

the Civil Judge at Faizabad in Suit 1 of 1950;

(iii) The plaint contains a reference to the earlier suits instituted before the Civil

Court and that the religious ceremonies for attending to the deities have

been looked after by the receiver appointed in the proceedings under

Section 145. Although seva and puja of the deity have been conducted,

darshan for the devotees is allowed only from behind a barrier;

(iv) Alleging that offerings to the deity have been misappropriated, it has been

stated that the devotees desired to have a new temple constructed ―after

removing the old structure at Sri Ram Janmabhumi at Ayodhya‖. A Deed of

Trust was constituted on 18 December 1985 for the purpose of managing

the estate and affairs of the Janmabhumi;

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(v) Though both the presiding deity of Lord Ram and Ram Janmabhumi are

claimed to be juridical persons with a distinct personality, neither of them

was impleaded as a party to the earlier suits. As a consequence, the

decrees passed in those suits will not bind the deities;

(vi) Public records establish that Lord Ram was born and manifested himself in

human form as an incarnation of Vishnu at the premises in dispute;

(vii) The place itself – Ram Janmasthan - is an object of worship since it

personifies the divine spirit worshipped in the form of Lord Ram. Both the

deity and the place of birth thus possess a juridical character. Hindus

worship the spirit of the divine and not its material form in the shape of an

idol. This spirit which is worshipped is indestructible. Representing this

spirit, Ram Janmabhumi as a place is worshipped as a deity and is hence

a juridical person;

(viii) The actual and continuous performance of puja of ―an immovable deity‖

by its devotees is not essential for its existence since the deity represented

by the land is indestructible;

(ix) There was an ancient temple during the reign of Vikramaditya at Ram

Janmabhumi. The temple was partly destroyed and an attempt was made

to raise a mosque by Mir Baqi, a Commander of Emperor Babur. Most of

the material utilised to construct the mosque was obtained from the temple

including its Kasauti pillars with Hindu Gods and Goddesses carved on

them;

(x) The 1928 edition of the Faizabad Gazetteer records that during the course

of his conquest in 1528, Babur destroyed the ancient temple and on its site

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a mosque was built. In 1855, there was a dispute between Hindus and

Muslims. The gazetteer records that after the dispute, an outer enclosure

was placed in front of the mosque as a consequence of which access to

the inner courtyard was prohibited to the Hindus. As a result, they made

their offerings on a platform in the outer courtyard;

(xi) The place belongs to the deities and no valid waqf was ever created or

could have been created;

(xii) The structure which was raised upon the destruction of the ancient temple,

utilising the material of the temple does not constitute a mosque. Despite

the construction of the mosque, Ram Janmabhumi did not cease to be in

possession of the deity which has continued to be worshipped by devotees

through various symbols;

(xiii) The building of the mosque could be accessed only by passing through the

adjoining places of Hindu worship. Hence, at Ram Janmabhumi, the

worship of the deities has continued through the ages;

(xiv) No prayers have been offered in the mosque after 1934. During the night

intervening 22-23 December 1949, idols of Lord Ram were installed with

due ceremony under the central dome. At that stage, acting on an FIR,

proceedings were initiated by the Additional City Magistrate under Section

145 of the CrPC and a preliminary order was passed on 29 December

1949. A receiver was appointed, in spite of which the possession of the

plaintiff deities was not disturbed;

(xv) The plaintiffs, were not a party to any prior litigation and are hence not

bound by the outcome of the previous proceedings; and

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(xvi) The Ram Janmabhumi at Ayodhya which contains, besides the presiding

deity, other idols and deities along with its appertaining properties

constitutes one integral complex with a single identity. The claim of the

Muslims is confined to the area enclosed within the inner boundary wall,

erected after the annexation of Oudh by the British.

The plaint contains a description of the demolition of the structure of the mosque

on 6 December 1992 and the developments which have taken place thereafter

including the promulgation of an Ordinance and subsequently, a law enacted by

the Parliament for acquisition of the land.

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

(i) The idol of Lord Ram has been installed not at Ram Janmabhumi but in

the Ram Janmabhumi temple. Nirmohi Akhara has instituted a suit

seeking charge and management of Ram Janmabhumi temple;

(ii) While the birth-place of Lord Ram is not in dispute, it is the Ram

Janmabhumi temple which is in dispute. The Muslims claim it to be a

mosque while Nirmohi Akhara claims it to be a temple under its charge

and management. Ram Janmabhumi temple is situated at ―Asthan Ram

Janmabhumi‖ (the birth-place of Lord Ram), Mohalla Ram Kot at

Ayodhya;

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(iii) Nirmohi Akhara is the Shebait of the idol of Lord Ram installed in the

temple in dispute and has the exclusive right to repair and reconstruct the

temple, if necessary; and

(iv) ―Ram Janmabhumi Asthan‖ is not a juridical person. The plaintiffs of suit

5 have no real title to sue. The entire premises belong to Nirmohi Akhara,

the answering defendant. Hence, according to the written statement the

plaintiffs have no right to seek a declaration.

According to the written statement of the Sunni Central Waqf Board:

(i) Neither the first nor the second plaintiffs are juridical persons;

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

(iii) The idols were surreptitiously placed inside the mosque on the night of 22-

23 December 1949. There is neither any presiding deity nor a Janmasthan;

(iv) The Suit of 1885 was instituted by Mahant Raghubar Das in his capacity

as Mahant of the Janmasthan of Ayodhya seeking permission to establish

a temple over a platform or Chabutra. The mosque was depicted in the site

plan on the western side of the Chabutra. The suit was instituted on behalf

of other Mahants and Hindus of Ayodhya and Faizabad. The suit was

dismissed. The first and second appeals were also rejected. Since the

claim in the earlier suit was confined only to the Chabutra admeasuring

seventeen by twenty-one feet outside the mosque, the claim in the present

suit is barred;

(v) There exists another temple known as the Janmasthan temple situated at

a distance of less than one hundred yards from Babri Masjid;

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(vi) The mosque was not constructed on the site of an existing temple or upon

its destruction;

(vii) During the regime of Emperor Babur the land belonged to the State and

the mosque was constructed on vacant land which did not belong to any

person;

(viii) The structure has always been used as a mosque ever since its

construction during the regime of Emperor Babur, who was a Sunni

Muslim;

(ix) The possession of Muslims was uninterrupted and continuous since the

construction of the mosque, until 22 December 1949. Therefore, any

alleged right to the contrary is deemed to have been extinguished by

adverse possession;

(x) Prayers were offered in the mosque five times every day, regularly until 22

December 1949 and Friday prayers were offered until 16 December 1949;

(xi) On 22-23 December 1949, some Bairagis forcibly entered into the mosque

and placed an idol below the central dome. This came to the knowledge of

Muslims who attended the mosque for prayers on 23 December 1949 after

which proceedings were initiated under Section 145 of the CrPC 1898. The

possession of the building has remained with the receiver from 5 January

1950;

(xii) The third plaintiff in Suit 5 could have got himself impleaded as a party to

the suit instituted by the Sunni Central Waqf Board. Having failed to do so

the third plaintiff cannot maintain Suit 5 as the next friend of the deities;

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(xiii) The third plaintiff has never been associated with the management and

puja of the idols and cannot claim himself to be the next friend of Lord

Ram;

(xiv) There is no presiding deity as represented by the first plaintiff and it is

incorrect to say that the footsteps (―charan‖) and other structures

constitute one integral complex with a single identity;

(xv) The concept of a mosque envisages that the entire area below as well as

above the land remains dedicated to God. Hence, it is not merely the

structure of the mosque alone but also the land on which it stands which is

dedicated to the Almighty, Allah;

(xvi) The site in question has no connection with the place of birth of Lord Ram

and has no significance to the alleged ―Asthan‖ of Ram Janmabhumi;

(xvii) The cause of action for the suit is deemed to have accrued in December

1949 when the property was attached and when the Muslims categorically

denied the claim of the Hindus to perform puja in the mosque. Hence, the suit is

barred by limitation;

(xviii) The subject matter of the suit is property registered as a waqf which is

maintained by the Sunni Central Waqf Board under Section 30 of the U P

Muslim Waqf Act 1960, shown as such in the revenue records; and

(xix) Archaeological experts seem to indicate that there appears to be no sign of

human habitation predating to 700 B.C. nor is there any evidence that a

fort, palace or old temple existed at the site of Babri Masjid.

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In the written statement filed on behalf of defendant no 5 who is a Muslim

resident of Ayodhya, it has been submitted that:

(i) The premises have always been a mosque since the construction in the

sixteenth century and have been used only for the purposes of offering

namaz;

(ii) The existence of Kasauti pillars is denied. No one else except the Muslims

worshipped in Babri Masjid. Namaz was offered in the mosque since its

construction until 22 December 1949;

(iii) Babri Masjid was not constructed on the site of a temple which was

demolished at the behest of Emperor Babur;

(iii) The Ram Janmasthan Mandir which exists in Ayodhya is distinct and

separate from the premises in question; and

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

An additional written statement was filed on behalf of defendant nos 4 and 5 in

order to deal with the amendments to the plaint consequent upon the demolition

of the Babri Masjid on 6 December 1992.

The written statement of defendant no 6, a Muslim resident of Ayodhya, adopts

the written statement of defendant no 5. The written statement of defendant no

11, the President of the All India Hindu Mahasabha, has submitted to a decree in

terms as sought in the plaint. The written statements filed by the Hindu and

Muslim defendants follow broadly the same respective lines.

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42. A written statement has been filed by defendant no 24, Prince Anjum

Qader stating thus:

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

(b) The Ram Chabutra, in the court-yard outside the

Babri Masjid structure, is being known as Ram Janam
Bhoomi only since 1885.

(c) The Janamsthan site Rasoi Mandir, facing the Babri

Masjid across the street, is traditionally known as
Ramjanambhumi since time immemorial.‖

According to defendant no 24:

(i) In 1855, a spot outside the structure of Babri Masjid in a corner of

the courtyard was claimed as the Janmasthan. At that stage, an

area admeasuring seventeen by twenty-one feet was partitioned by

naming it as Ramchabutra;

(ii) On 22 December 1949, the Janmasthan claim was shifted from

Ramchabutra to a place inside the mosque beneath the main dome

of the Babri Masjid;

(iii) Prior to 1855, ―the undisputed Ram Janmasthan was the old

Janmasthan Sita Rasoi Mandir across the street on a mound facing

the Babri Masjid‖;

(iv) According to defendant no 24, the following three sites are now

believed to be probable places of the birth of Lord Ram, namely:

(a) Inside the Babri Masjid beneath the main dome since 1949;

(b) At Ramchabutra in the courtyard of the Babri Masjid since

1855; and

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(c) At the old Ram Janmasthan Mandir where Sita Rasoi is also

situated.

(v) While the 1928 edition of the Faizabad Gazetteer published by the

British Government contains a narration of Emperor Babur halting at

Ayodhya for a week, destroying the ancient temple and building the

Babri Masjid with the materials of the destroyed temple, it is a fact of

history that Babur never came to Ayodhya. The Babur-Nama, a

memoir of Emperor Babur has made no mention of visiting Ayodhya,

destroying the temple or of building a mosque. Defendant no 24

states that:
―However, after all said and done, it is most
respectfully submitted that if only this claim is proved
that a Mandir was demolished and Babri Masjid was
built on the Mandir land, this defendant and all other
Muslims will gladly demolish and shift the mosque,
and return the land for building of the Mandir
thereon.‖

(vi) Babri Masjid was built by Mir Baqi on vacant land and not on the ruins

of a pre-existing temple. Since Mir Baqi was a Shia Muslim,

the ‗mutawalliship‘ devolved upon his descendants since inception

in 1528 without a break. However, both Shias and Sunnis offered

namaz in Babri Masjid. The Sunni Muslims were permitted by the

Shia mutawalli to perform their own daily Jamaat in the Masjid since

1925, when the Shia population in Ayodhya dwindled. The Sunni

Imam of Babri Masjid led the last namaz on 22 December 1949.

The written statement of defendant no 25 states that:

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(i) Babri Masjid has always been in use as a mosque in which the

namaz was offered since its construction, until 22 December 1949;

and

(ii) On the night between 22-23 December 1949, some persons illegally

trespassed into the mosque as a result of which an FIR was lodged

and proceedings under Section 145 were initiated. A receiver was

appointed and the status quo was directed to be continued during

the pendency of the civil suits before the Civil Court.

Heads of issues in the Suits

43. Justice Sudhir Agarwal observed that the issues in the four suits can be

broadly classified under the following heads :

―(A) Notice under Section 80 C.P.C.

(B) Religious denomination
(C) Res judicata, waiver and estoppel (D) Waqf
Act 13 of 1936 etc.
(E) Miscellaneous issues like representative nature of suit, Trust,
Section 91 C.P.C., non joinder of parties, valuation/ insufficient Court
fee/under valuation and special costs.

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(F) Person and period- who and when constructed the disputed
building (G) Deities, their status, rights etc. (H) Limitation
(I) Possession/adverse possession
(J) Site as birthplace, existence of temple and
demolition if any.
(K) Character of Mosque
(L) Identity of the property
(M) Bar of Specific Relief Act
(N) Others, if any.‖

C. Evidence: a bird‘s eye view

44. A wealth of material emerged before the court during the course of the trial.

The judgment of Justice Sudhir Agarwal in the High Court copiously tabulates the

documentary evidence12. The documentary exhibits of the parties during the

course of trial comprised of 533 exhibits of which a brief categorisation

is:

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

2. Plaintiffs (Suit-3) – Exhibits No. 1 to 21 (Total 21)

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

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

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

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

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

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

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

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

(vi) Exhibit No. V1 (Total 1)

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

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

12 2010 (ADJ), Vol. I, pages 624-662

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(ii) Exhibits No. D1 to D38 (Total 38)

(iii) Exhibits No. E1 to E8 (Total 12)

Grand Total - 533

These exhibits broadly comprise of :

(i) Religious texts;

(ii) Travelogues;

(iii) Gazetteers;

(iv) Translations of inscriptions on pillars;

(v) Reports of Archaeological excavation;

(vi) Photographs prior to demolition; and

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

The judgment of Justice Sudhir Agarwal in the High Court tabulates the oral

evidence in the four suits under the following heads:

―274. (1) Oral Depositions : Parties to these suits produced

88 witnesses, who deposed on one or the other subject.
Broadly, these witnesses are categorized as under:
275. (a) Witnesses produced in Suit-4 by Plaintiff :
(I) Witness of facts :
1. P.W 1 Sri Mohd. Hashim
2. PW 2 Hazi Mahboob Ahmed
3. PW 3 Farooq Ahmad
4. PW 4 Mohd. Yasin
5. PW 5 Sri Abdul Rehman
6. PW 6 Mohd. Yunus Siddiqui
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7. PW 7 Sri Hashmat Ullah Ansari

8. PW 8 Sri Abdul Aziz
9. PW 9 Syeed Akhlak Ahmad
10. PW 10 Mohd. Idris
11. PW11 Mohd. Burhanuddin
12. PW 12 Ram Shanker Upadhyay
13. PW 13 Suresh Chandra Mishra
14. PW 14 Jalil Ahmad
15. PW 21 Dr. M. Hashim Qidwai
16. PW 23 Mohd Qasim Ansari
17. PW 25 Mohd. Sibte Naqvi

(II) Expert Witnesses (Historians)

19. PW 15 Sushil Srivastava
20. PW 18 Prof. Suvira Jaiswal
21. PW 20 Prof. Shirin Musavi

(II) Expert Witnesses (Archaeologists)

22. PW 16 Prof. Suraj Bhan
23. PW 24 Prof. D. Mandal
24. PW 27 Dr. Shereen F. Ratnagar
25. PW 28 Dr. Sita Ram Roy
26. PW 29 Dr. Jaya Menon
27. PW 30 Dr. R. C. Thakran
28. PW 31 Dr. Ashok Datta
29. PW 32 Dr. Supriya Verma

(II) Private Commissioner

30. PW 17 Zafar Ali Siddiqui

(II) Expert Witnesses (Religious matters)

31. PW 19 Maulana Atiq Ahmad
32. PW 22 Mohd. Khalid Naqui
33. PW 26 Kalbe Jawed

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

(I) Witness of facts :

1. OPW 1 Mahant Paramhans Ram Chandra
Das

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2. OPW 2 Sri D.N. Agarwal

3. OPW 4 Harihar Prasad Tewari
4. OPW 5 Ram Nath Mishra alias Banarsi
Panda
5. OPW 6 Hausila Prasad Tripathit
6. OPW 7 Sri Ram Surat Tewari
7. OPW 8 Ashok Chandra Chatterjee
8. OPW 12 Kaushal Kishor Misra
9. OPW 13 Narad Saran

(II) Expert Witnesses (Archaeologists)

10. OPW 3 Dr. S.P. Gupta
11. OPW 14 Dr. Rakesh Tewari
12. OPW 17 Dr. R. Nagaswami
13. OPW 18 Sri Arun Kumar Sharma
14. OPW 19 Sri Rakesh Dutta Trivedi

(II) Expert Witness (Epigraphist and

Historian)
15. OPW 9 Dr. T.P. Verma

(II) Expert Witnesses (Epigraphist)

16. OPW 10 Dr. Voluvyl Vyasarayasastri Ramesh
17. OPW 15 Dr. M.N. Katti

(II) Expert Witnesses (Historians)

18. OPW 11 Dr. Satish Chandra Mittal

(II) Expert Witnesses (Religious matters)

19. OPW 16 Jagadguru Ramanandacharya
Swami Ram Bhadracharya

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

(I) Witness of facts :

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1. DW 1/1 Sri Rajendra Singh

2. DW 1/2 Sri Krishna Chandra Singh
3. DW 1/3 Sri Sahdeo Prasad Dubey

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

(I) Witness of facts :

1. DW 3/1 Mahant Bhaskar Das
2. DW 3/2 Sri Raja Ram Pandey
3. DW 3/3 Sri Satya Narain Tripathi
4. DW 3/4 Mahant Shiv Saran Das
5. DW 3/5 Sri Raghunath Prasad Pandey
6. DW 3/6 Sri Sita Ram Yadav
7. DW 3/7 Mahant Ramji Das
8. DW 3/8 Pt. Shyam Sundar Mishra @ Barkau
Mahraj
9. DW 3/9 Sri Ram Ashrey Yadav
10. DW 3/11 Sri Bhanu Pratap Singh
11. DW 3/12 Sri Ram Akshaibar Pandey
12. DW 3/13 Mahant Ram Subhag Shashtri
13. DW 3/15 Narendra Bahadur Singh
14. DW 3/16 Sri Shiv Bhikh Singh
15. DW 3/17 Sri Mata Badal Tewari
16. DW 3/18 Sri Acharya Mahant Bansidhar Das
@ Uriya Baba
17. DW 3/19 Sri Ram Milan Singh
18. DW 3/20 Mahant Raja Ramchandr-acharya

(II) Others :
19. DW 3/10 Sri Pateshwari Dutt Pandey
20. DW 3/14 Jagad Guru Ramanandacharya
Swami Haryacharya

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

(I) Witness of facts :

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

(II) Others :

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2. DW 2/1-1 Sri Rajendra.

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

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

(I) Expert Witness (Historians) :
1. DW 13/1-3 Dr. Bishan Bahadur

(II) Others :
2. DW 13/1-1 Mahant Dharam Das
3. DW 13/1-2 Mahant Awadh Bihari Das Pathak

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

(I) Witness of facts :
1. DW 17/1 Sri Ramesh Chandra Tripathi

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

(I) Witness of facts :

1. DW 20/1 Sri Shashi Kant Rungta
2. DW 20/4 Sri M.M. Gupta

(II) Expert Witnesses (Religious matters)

3. DW 20/2 Swami Avimukteshwaran and
Saraswati
4. DW 20/3 Bramchari Ram Rakshanand

(III) Expert Witness (Archaeologist)

5. DW 20/5 Sri Jayanti Prasad Srivastava

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

(I) Expert Witness (Archaeologist) :

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

(II) Others :

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2. DW 6/1-1 Sri Haji Mahboob Ahmad.‖

Statements under Order X Rule 2 CPC

45. During the course of the hearing of the suit, the Trial Court recorded the

statements of parties and their pleaders under the provisions of Order X Rule 2 of

the Code of Civil Procedure 190814 (―CPC‖).

14
2. Oral examination of party, or companion of party- (1) At the first hearing of the suit, the Court-
On 8 August 1962, it was stated on behalf of the Sunni Central Waqf Board that:

―the property in suit is the property dedicated to Almighty

God and is a mosque for the use of the entire Muslim
community at large…‖

On 28 August 1963, it was stated by the Sunni Central Waqf Board that in the

alternative even if the defendants had any right in the property, it stood

extinguished by a lapse of time and the plaintiff (Sunni Central Waqf Board) had

acquired title by adverse possession.

On 11 January 1996, the statement of Mr Zafaryab Jilani, learned Senior Counsel

appearing for the Sunni Central Waqf Board was recorded to the effect that:

―That the mosque was situate on a Nazul Plot No. 583 of the
Khasra of 1931 of Mohalla Kot Ramchandra known as
Ramkot at Ayodhya.‖

On 22 April 2009, the following statement of Mr Zafaryab Jilani, learned Senior

Counsel was recorded under Order X Rule 2 of the CPC:

―For the purpose of this case there is no dispute about the

faith of Hindu devotees of Lord Rama regarding the birth of

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Lord Rama at Ayodhya as described in Balmiki Ramayana or

as existing today. It is, however, disputed and denied that the
site of Babri Masjid was the place of birth of Lord Rama. It is
also denied that there was any Ram Janam Bhoomi Temple
at the site of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the second half of
Nineteenth Century onwards is also not disputed. It is
however, denied and disputed that Nirmohi Akhara was in

(a) shall, with a view to elucidating matters in controversy in the suit, examine, orally such of the parties to
the suit appearing in person or present in Court, as it deems fit; and
(b) may orally examine any person, able to answer any material question relating to the suit, by whom any
party appearing in person or present in Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in
Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader
is accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by
either party.

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existence and specially in Ayodhya in 16 th Century A.D. or in

1528 A.D. and it is also denied that any idols were there in
the building of the Babri Masjid up to 22nd December, 1949.‖

Similar statements were made on behalf of other counsel representing the

Muslim parties. There is, in other words, no dispute before this Court in regard to

the faith and belief of the Hindus that the birth of Lord Ram is ascribed to have

taken place at Ayodhya, as described in Valmiki‘s Ramayan. What is being

disputed is whether the disputed site below the central dome of the Babri Masjid

is the place of birth of Lord Ram. The Muslim parties have expressly denied the

existence of a Ram Janmabhumi temple at the site of Babri Masjid. With this

background, it becomes necessary to advert to the salient aspects of the

documentary evidence which has emerged on the record.

D. The aftermath of 1856-7

D.1 Response to the wall

46. In 1856-7, a communal riot took place. Historical accounts indicate that the

conflagration had its focus at Hanumangarhi and the Babri mosque. Some of

those accounts indicate that prior to the incident, Muslims and Hindus alike had

access to the area of the mosque for the purpose of worship. The incident was

proximate in time with the transfer of power to the colonial government. The

incident led to the setting up of a railing made of a grill-brick wall outside the

mosque. The object of this would have been to maintain peace and due order at

the site. The railing provided the genesis of the bifurcation of the inner courtyard

(in which the structure of the mosque was situated) and the outer courtyard

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comprising the remaining area. The setting up of the railing was not a

determination of proprietary rights over the inner and outer courtyards, the

measure having been adopted to maintain peace between the two communities.

This section of the judgment traces the documentary evidence on the aftermath

of 1856-7 at the disputed site, the continuing skirmishes in the inner and outer

courtyards, the proceedings between various disputants and the claim to worship

by the Hindus in the inner courtyard. The evidence is as follows:

(i) On 28 November 1858 a report was submitted by Sheetal Dubey who was

the Thanedar, Oudh13. The report spoke of an incident during which Hawan

and Puja was organised inside the mosque by a Nihang Sikh who had

erected a religious symbol. The report states:

―Today Mr. Nihang Singh Faqir Khalsa resident of Punjab,

organized Hawan and Puja of Guru Gobind Singh and
erected a symbol of Sri Bhagwan, within the premises of the
Masjid. At the time of pitching the symbol, 25 sikhs were
posted there for security. Deemed necessary so requested.
May your regime progress. Pleasure.‖

(ii) An application was submitted by Syed Mohammad Khateeb, Muazzim of

the Masjid14. The subject of the application was the report of the Thanedar

Oudh. The application stated that ‗Mahant Nihang Singh Faqir‘ was

creating a riot on ―Janam Sthan Masjid situated in Oudh‖. The application

stated:

―Near Mehrab and Mimber, he has constructed, inside the

case, an earth Chabutra measuring about four fingers by
filling it with Kankars (concrete). Lighting arrangement has

13 Exhibit 19
14 Exhibit 20

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been made…and after raising the height of Chabutra about

11/4 yards a picture of idol has been placed and after digging a
pit near it, the Munder wall has been made Pucca. Fire has
been lit there for light and Puja and Hom is continuing there.
In whole of this Masjid ‗Ram Ram‘ has been written with coal.
Kindly, do justice. It is an open tyranny and high handedness
of the Hindus on Muslims and not that of Hindus. Previously
the symbol of Janamsthan had been there for hundreds of
years and Hindus did Puja. Because of conspiracy of Shiv
Ghulam Thandedar Oudh Government, the Bairagis
constructed overnight a Chabutra up to height of one ‗Balisht‘
until the orders of injunction were issued. At that time the
Deputy Commissioner suspended the Thanedar and fine was
imposed on Bairagis. Now the Chabootra has been raised to
about 11/4 yards. Thus sheer high-handedness has been
proved. Therefore, it is requested that Murtaza Khan Kotwal
City may be ordered that he himself visit the spot and inspect
the new constructions and get them demolished (sic) and
oust the Hindus from there; the symbol and the idol may be
removed from there and writing on the walls be washed.‖

The contents of the application indicate that by this time a platform had been

constructed inside the mosque in which an idol had been placed. A fire had been

lit and arrangements were made for puja. Evidently, the railing did not prevent

access to the inner courtyard or to the precincts of the mosque.

(iii) A report was submitted by the Thanedar on 1 December 1858 ―for

summoning Nihang Singh Faqir who is residing within the Masjid Janam

Sthan15. The report stated that he had taken a summons ―to the said

Faqir‖ and he was admonished, in spite of which he continued to insist that

―every place belonged to Nirankar‖;

(iv) A report was submitted by the Thanedar on 6 December 1858 indicating

service of the summons16;

15 Exhibit 21
16 Exhibit 22

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(v) There was an application dated 9 April 1860 of Mohammadi Shah, resident

of Mohalla Ramkot seeking a postponement of the grant of a lease in

respect of village Ramkot until a decision was taken on whether the land is

Nazul land17;

(vi) On 5 November 1860, an application was made to the Deputy

Commissioner for the removal of the Chabutra which had been

constructed ―within Babri Masjid Oudh‖18. The grievance in the application

and the relief sought is indicated in this extract:

―Besides, when the Moazzin recites Azaan, the opposite

party begins to blow conch (Shankh/Naqoos). This has never
happened before. I would pray that your honour is the Judge
for both the parties. The opposite party should be restrained
from his unlawful act and after proper inquiry the newly
constructed Chabootra which had never existed, may kindly
be demolished and a bond be got executed from the
opposite party to the effect that he will not unlawfully and
illegally interfere in the Masjid property and will not blow
conch
(Shankh/Naqoos) at the time of Azaan.‖

(vii) The application would indicate that the namaz was at the stage being

performed in the mosque. The Azaan of the Moazzin was met with the

blowing of conch shells by the Hindus. A contentious situation was arising.

Eventually, the Nihang Sikh was evicted from the site and a record was

maintained;

(viii) In or about 1877, another door to the outer courtyard was allowed to be

opened by the administration on the northern site, in addition to the

17 Exhibit 23
18 Exhibit 31

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existing door on the east. The Deputy Commissioner declined to entertain

a complaint against the opening made in the wall of the Janmasthan 19. The

order of the Deputy Commissioner records:

―A doorway has recently been opened in the wall of the

Janum-Asthan not at all in Baber‘s mosque, but in the wall
which in front is divided from the mosque by a railing. This
opening was necessary to give a separate route on fair days
to visitors to the Janum-Asthan. There was one opening
only, so the crush (sic rush) was very great and life was
endangered. I marked out the spot for the opening myself
so there is no need to depute any Europe officer. This
petition is merely an attempt to annoy the Hindu by
making it dependent on the pleasure of the mosque
people to open or close the 2nd door in which the
Mohammedans can have no interest.‖
(Emphasis supplied)

This was accepted by the Commissioner while dismissing an appeal on 13

December 1877 holding:

―As the door in question has opened by the Deputy

Commissioner in the interests of the public safety, I decline to
interfere. Appeal dismissed.‖

(ix) Justice Agarwal has alluded to the above documentary evidence including

in particular, the application of the Moazzin dated 30 November 1858.20

The application complained of the construction of a Chabutra near the

mihrab and mimbar on which a picture of an idol had been placed. The

complaint refers to the worship which was being conducted by lighting a

fire and conducting a puja. The letter notes that previously the symbol of

the Janmasthan was in existence for hundreds of years and Hindus had

performed puja. Justice Agarwal has noted that the genuineness of this

19 Exhibit 15
20 Exhibit 20

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document has not been disputed by the plaintiff in the suit or of it having

been written by a person whose identity was not disputed. The learned

Judge held that the document contains admissions which prove that

Hindus had continuously offered prayers inside the disputed building including

the inner courtyard and at Ramchabutra and Sita Rasoi in the outer courtyard.

However, during the course of the proceedings Mr Mohd. Nizamuddin Pasha,

learned counsel for the plaintiffs in Suit 4 has challenged the translation of the

exhibit;

(x) Mohd Asghar instituted Suit 374/943 of 188221 against Raghubar Das,

Mahant, Nirmohi Akhara claiming rent for use of the Chabutra and Takht

near the door of Babri Masjid and for organizing the Kartik Mela on the

occasion of Ram Navami in 1288 Fasli. The Sub-Judge, Faizabad

dismissed the suit on 18 June 1883;

(xi) The construction of a railing in 1856-7 to provide a measure of separation

between the inner and outer courtyards led to the construction of a

platform by the Hindus in close proximity to the railing, in the outer

courtyard. The platform, called Ramchabutra, became a place of worship

for the Hindus;

(xii) On 29 January 1885, a suit was instituted in the court of the Munsif,

Faizabad by Mahant Raghubar Das, describing himself as ―Mahant

Janmasthan at Ayodhya‖. The sole defendant was the Secretary of State

for India in Council22. The relief which was sought in the suit was an

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

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injunction restraining the defendant from obstructing the construction of a

temple over the Chabutra admeasuring 17x21 feet. The plaint stated that

the Janmasthan at Ayodhya is a place of religious importance and the

plaintiff is a Mahant of the place. Charan Paduka was affixed on the

Chabutra and a small temple built next to it was worshipped. The plaintiff

stated that in April 1883, the Deputy Commissioner, Faizabad acting on the

objection of the Muslims, obstructed the construction of a temple. A map

was appended with the plaint showing the three domed structure

described as ―Masjid‖ within a boundary railing. The map appended to

the plaint indicated two entrances to the outer courtyard on the Northern

and Eastern sides. Mohd Asghar as Mutawalli of the mosque was

impleaded as second defendant to the suit. He filed a written statement on

22

December 1885 stating that Babur had created a waqf by constructing a

Masjid and above the door, the word ‗Allah‘ was inscribed. Babur was also

stated to have declared a grant for its maintenance. Mohd Asghar pleaded

that no permission had been granted for the use of the land in the

compound of the mosque. It was averred that there was no Chabutra from

the date of the construction of the mosque until 1856 and it was only

constructed in 1857. The prayer for the construction of a temple was

opposed; and

The above suit was dismissed by the Sub-Judge on 24 December 1885.

The Trial Court held that:

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(a) The Chabutra was in possession of the plaintiff, which had not been

disputed by the second defendant;

(b) The area was divided by a railing wall separating the domed

structure from the outer courtyard where the Chabutra existed to

prevent any dispute between Hindus and Muslims;

(c) The erection of a railing was necessitated due to the riot in 1885

between Hindus and Muslims;

(d) The divide was made to so that Muslims could offer prayers inside

and the Hindus outside;

(e) Since the area to visit the mosque and the temple was the same but

the place where the Hindus offered worship was in their possession,

there could be no dispute about their ownership; and

(f) Though the person who was the owner and in possession is entitled

to make construction, grant of permission to construct a temple in

such close proximity to a mosque may lead to a serious dispute

between Hindus and Muslims and create a law and order problem.

The suit was dismissed on this ground.

Against the decree of the Trial Court, an appeal was filed by Mahant Raghubar

Das while cross-objections were filed by Mohd Asghar. The District Judge by a

judgment dated 18/26 March 1886 dismissed the appeal of the plaintiff. The

District Judge held that it was ―most unfortunate‖ that the Masjid should have

been built on the land especially held sacred by the Hindus but since the

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construction had been made 358 years earlier, it was too late in the day to

reverse the process. The suit was dismissed on the ground that there was no

injury which could give a right of action to the plaintiff. On the cross-objections of

Mohd Asghar, the District Judge held that the finding of the Trial Court that the

plaintiff was the owner of the land in dispute was redundant and should be

expunged.

The second appeal was dismissed by the Judicial Commissioner of Oudh on 1

November 1886 on the ground that (i) there was nothing on record to show that

the plaintiff was the proprietor of the land in question; and (ii) it was inappropriate

to allow the parties to disturb the status quo especially when a mosque had been

in existence for nearly 350 years. The Judicial Commissioner held:

―The matter is simply that the Hindus of Ajodhya want to

create a new temple or marble baldacchino over the
supposed holy spot in Ajodhya said to be the birthplace of
Shri Ram Chandar. Now this spot is situated within the
precinct of the grounds surrounding a mosque erected some
350 years ago owing to the bigotry and tyranny of the
Emperor Babur, who purposely chose this holy spot
according to Hindu legend as the site of his mosque.

The Hindus seem to have got very limited rights of access to

certain spots within the precincts adjoining the mosque and
they have for a series of years been persistently trying to
increase those rights and to erect buildings on two spots in
the enclosure:

(a) Sita ki Rasoi

(b) Ram Chandar ki Janam Bhumi.

The Executive authorities have persistently refused these
encroachments and absolutely forbid any alteration of the
‗status quo‘.

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I think this is a very wise and proper procedure on their part

and I am further of opinion that the Civil Courts have properly
dismissed the Plaintiff‘s claim.‖

The issue as to whether the findings in the suit will operate as res judicata will be

dealt with in a subsequent segment of the judgment.

The conflagration which took place in 1855-56 resulted in a brick wall and railing

being put up outside the mosque. This divided the courtyard into an inner portion

which lay within the railing and the outer portion beyond it. Situated in the outer

portion were places worshipped by the Hindus, among them being Ramchabutra

and Sita Rasoi. Two entrance gates (on the north and east) provided access to

the outer courtyard. Entry to the mosque was through the access points to the

outer courtyard.

D.2 Period between 1934-1949

47. In 1934, there was another communal incident in the course of which damage

was sustained to the mosque which was subsequently restored. The

documentary evidence which has been brought on record shows that :

(i) The colonial administration sanctioned the work of repair and renovation of

the damaged structure of the mosque;

(ii) A fine was imposed on the Hindus for the damage which was caused to

the mosque;

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(iii) The work of restoration was entrusted to a Muslim contractor with whom

there was an exchange of correspondence over the payment of unpaid

bills and for verification of work done;

(iv) This was a claim by the Pesh Imam of the mosque over the payment of the

arrears of salary with the Mutawalli; and

(v) Upon the work of repair, the administration permitted arrangements to be

made for commencement of namaz.

(In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab Jilani have relied upon this

documentary evidence as indicative of the status of the mosque and of the

performance of namaz).

48. A series of incidents took place between March and December 1949. On

19 March 1949, a deed was executed by the Panches of Nirmohi Akhara

purportedly to reduce into writing the customs of the Akhara. This document 23

included the following provision in regard to ―the temple of Janmabhoomi‖ of

which the management was claimed to vest in the Akhara:

―Temple of Janam Bhoomi is situate in Mohalla Ram Ghat

of City, Ayodhya which is under the Baithak of this Akhara
and its whole management is trust upon to this Akhara. It
stands in name of Mahant of Akhara as Mahant and
Manager. This is the best well reputed, moorty of worship
temple of Ayodhya. Being the birthplace of Lord Rama, it is
the main temple of Ayodhya. The deity of Shri Ram Lalaji is
installed there and there are other deities also.‖

23 Exhibit 1 in Suit 3

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49. During the course of his arguments, Dr Rajeev Dhavan, learned Senior

Counsel for the plaintiffs in Suit 4 urged that the communications exchanged

between the officials of the State of Uttar Pradesh demonstrate that they had

prior information about a carefully planned course of action of placing idols inside

the mosque which led to the desecration of the mosque. Despite this, it has been

submitted, the administration took no steps to prevent such an incident from

taking place. Hence, in this backdrop, it is necessary to set out the events that led

to the incident which took place on 22-23 December 1949:

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

(ii) On 29 November 1949, Kripal Singh who was the Superintendent of Police

at Faizabad addressed a letter to K K Nayar, the Deputy Commissioner

and District Magistrate, Faizabad stating:

―I visited the premises of Babri mosque and the Janm

Asthan in Ajodhya this evening. I noticed that several
―Hawan Kunds‖ have been constructed all around the
mosque. Some of them have been built on old constructions
already existing there.‖
…
I found bricks and lime also lying near the Janm Asthan. They
have a proposal to construct a very big Havan Kund
where Kirtan and Yagna on Puranmashi will be performed
on a very large scale. Several thousand Hindus, Bairagis
and Sadhus from outside will also participate. They also
intend to continue the present Kirtan till Puranmashi. The
plan appears to be to surround the mosque in such a way
that entry for the Muslims will be very difficult and
ultimately they might be forced to abandon the mosque.
There is a strong rumour, that on puranmashi the Hindus
will try to force entry into the
mosque with the object of installing a deity.‖
(Emphasis supplied)

(iii) On 10 December 1949, Mohd Ibrahim who was the Waqf Inspector

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submitted a report to the secretary of the Masjid stating that Muslims were

being prevented from offering namaz Isha (the namaz at night) at the

mosque, due to the fear of Hindus and Sikhs and there was an

apprehension of danger to the mosque:

―On investigation in Faizabad city it was revealed that

because of the fear of Hindus and Sikhs no one goes into
the Masjid to pray Namaz Isha. If by chance any
passenger stays in the Masjid he is being threatened and
teased by the Hindus ... (sic)..... There are number of
Numberdars ... (sic)..... if any Muslim into the Masjid, he is
harassed and abused. I made on the spot enquires which
reveal that the said allegations are correct. Local people
stated that the Masjid is in great danger because of
Hindus ... (sic)..... Before they try to damage the wall of
the Masjid, it seems proper the Deputy Commissioner
Faizabad may be accordingly informed , so that no
Muslim, going into the Masjid may be teased. The Masjid
is a Shahi monument and it should be preserved.‖
(Emphasis supplied)

(iv) On 16 December 1949, K K Nayyar addressed a communication to Govind

Narayan who was Home Secretary to the Government of Uttar Pradesh,

stating that there was a ―magnificent temple‖ at the site which had been

constructed by Vikramaditya, which was demolished by Babur for the

construction of a mosque, known as Babri Masjid. The letter stated that

building material of the temple was used in the construction of the mosque

and that a long time had elapsed before Hindus were again restored to the

possession of a site therein, at the corner of two walls. The letter recorded

a reference to recent happenings and stated:

―Some time this year probably in October or November

some grave-mounds were partially destroyed apparently by
Bairagis who very keenly resent Muslim associations with this

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shrine. On 12.11.49 a police picket was posted at this place.

The picket still continues in augmented strength.
There were since other attempts to destroy grave-mounds.
Four persons were caught and cases are proceeding against
them but for quite some time now there have been no
attempts.
Muslims, mostly of Faizabad have been exaggerating these
happenings and giving currency to the report that graves are
being demolished systematically on a large scale. This is an
entirely false canard inspired apparently by a desire to
prevent Hindus from securing in this area possession or rights
of a larger character than have so far been enjoyed. Muslim
anxiety on this score was heightened by the recent Navami
Ramayan Path, a devotional reading of Ramayan by
thousands of Hindus for nine days at a stretch. This period
covered a Friday on which Muslims who went to say their
prayers at the mosque were escorted to and from safely by
the Police.

As far as I have been able to understand the situation the

Muslims of Ayodhya proper are far from agitated over this
issue with the exception of one Anisur Rahman who
frequently sends frantic messages giving the impression that
the Babri Masjid and graves are in imminent danger of
demolition.‖

Nayyar saw no apprehension of danger to the mosque in spite of the letter

of the Superintendent of Police which contained specific reference to the

plans which were afoot to enter the mosque and install idols within its

precincts;

(v) On the night between 22-23 December 1949, Hindu idols were

surreptitiously placed inside Babri Masjid by a group of 50-60 persons. An

FIR was lodged, complaining of the installation of idols inside the inner

courtyard of the disputed site. The FIR, complaining of offences under

Sections 147, 295, 448 of the Indian Penal Code was lodged at 7:00 pm

on 23 December 1949 by Ram Deo Dubey, Sub-Inspector in charge. The

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FIR recorded that on information received from Mata Prasad, Constable

No. 7, the complainant had arrived at the disputed site at 7:00 am and

learned that a crowd of 50 or 60 persons had broken the locks placed on

the compound of the mosque and had placed the idols inside, besides

inscribing the names of Hindu deities on the walls. Thereafter, 5000 people

had gathered to perform Kirtan. It was alleged that Abhay Ram Das, Ram

Shukul Das, Sheo Darshan Dass and about 50 or 60 persons had

committed an act of trespass by entering the mosque and installing idols,

thereby desecrating the mosque.

The judgment of Justice S U Khan contains a reference to the report/diary

of the District Magistrate stating that on 23 December 1949, the crowd was

controlled by allowing two or three persons to offer bhog;

(vi) K K Nayyar opposed the direction of the state government to remove the

idols, fearing a loss of life. On 25 December 1949, K K Nayar recorded

that puja and bhog was offered as usual. In spite of the directions to

remove the idols, K K Nayar declined to do so stating that ―if Government

still insisted that removal should be carried out in the face of these facts, I

would request to replace me by another officer‖;

(vii) K K Nayar addressed two letters on 26 and 27 December 1949 to

Bhagwan Sahai, Chief Secretary, Government of U.P. stating that the

incident that took place on 23 December 1949 was ―unpredictable and

irreversible‖ on the basis of the above narration of incidents. On the basis

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of the above documentary material, Dr Dhavan, learned Senior Counsel

submitted that:

(a) There was a mosque at the disputed site;

(b) The state authorities acknowledged the structure as a mosque and

consistently referred to it as a mosque in their internal

communications;

(c) From the report of the Waqf commissioner dated 10 December

1949, the following points emerge:

―(a) The temple of the Hindus was outside the

courtyard
Namaz was being read in the Babri Mosque as it
refers to the Muslim worshippers being harassed by
the members of the Hindu Community;‖

(d) The state authorities acknowledged the threat posed by the

members of the Hindu Community to the mosque and to the people

going to pray;

(e) The state authorities could foresee the potential desecration / attack

to the mosque and the worshippers, but took no steps to avert such

an incident;

(f) From the internal communication of the officials of the state, it is

clear that the desecration of the mosque was planned as the

Superintendent of Police had informed the Deputy Commissioner of

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(g) the plan of the Hindus to force entry into the mosque with the

intention of installing an idol;

(h) The desecration of December 22-23, 1949 was a planned attack,

the seeds for which were sown with the ‗customs deed‘ dated

March 19, 1949 when the temple of Ram Janmabhumi was for the

first time mentioned; and

(i) Officials of the state refused to thereafter remove the surreptitiously

installed idols despite orders from the State Government, further

confirming their alliance with the miscreants who desecrated the

mosque.

E. Proceedings under Section 145

50. On 29 December 1949, a preliminary order was issued under Section 145 of

the CrPC 1898 by the Additional City Magistrate, Faizabad cum Ayodhya.

Simultaneously, treating the situation as involving an emergency, an order of

attachment was issued and the disputed site was directed to be entrusted to Sri

Priya Datt Ram who was the Chairman of the Municipal Board. The order dated

29 December 1949 is extracted below:

―Whereas I, Markendeya Singh, Magistrate First Class and

Additional City Magistrate, Faizabad-cum-Ayodhya, am fully
satisfied from information received from Police sources and
from other credible sources that a dispute between Hindus
and Muslims in Ayodhya over the question of rights of
proprietorship and worship in the building claimed variously
as Babari Masjid and Janam Bhoomi Mandir, situate at
Mohalla Ram Kot within the local limits of my jurisdiction, is
likely to lead to a breach of the peace.

I hereby direct the parties described below namely:

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(1) Muslims who are bona fide residents of

Ayodhya or who claim rights of proprietorship or
worship in the property in dispute;

(2) Hindus who are bona fide residents of

Ahodhya or who claim rights of proprietorship or
worship in the property in dispute;

to appear before me on 17th day of January at 11 A.M. at

Ayodhya Police Station in person or by pleader and put in
written statements of their respective claims with regard to the
fact of actual possession of the subject of dispute.

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

The attachment shall be carried out immediately by Station

Officer, Ayodhya Police Station, who shall then put the
attached properties in the charge of Sri Priya Datt Ram,
Chairman Municipal Board, Faizabad-cum-Ayodhya who shall
thereafter be the receiver thereof and shall arrange for the
care of the property in dispute.

The receiver shall submit for approval a scheme for

management of the property in dispute during attachment,
and the cost of management shall be defrayed by the parties
to this dispute in such proportions as may be fixed from time
to time.
This order shall, in the absence of information regarding the
actual names and addresses of the parties to dispute to be
served by publication in:

1. The English Daily, ―The Leader‖ Allahabad,

2. The Urdu Weekly ―Akhtar‖ Faizabad 3. The
Hindi Weekly ―Virakta‖ Ayodhya.

Copies of this order shall also be affixed to the walls of the

buildings in dispute and to the notice board at Ayodhya Police
Station.

Given under my hand and the seal of the court on this the twenty
ninth day of December, 1949 at Ayodhya.‖

51. The receiver took charge on 5 January 1950 and made an inventory of the

properties which had been attached. The last namaz which was offered in

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the mosque was on 16 December 1949. The receiver made an inventory of

the following articles:

―1. Idols of Thakur Ji

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

(b) Six idols of Sri Shaligram Ji.

2 . A two feet high silver throne.

3. One idol of Hanuman Ji.

4 (a) One glass of German Silver.

(b) One small glass of silver.

(c) One big glass of silver

5. One Garun bell.

6. One incensory.

7. One Arti vessel.

8. One lamp stand

9. ―Husra‖ and one sandal.

10. Two big photographs of Ram Janki.

11. Four flower pots.

12. One (small) photograph of Badrinath Ji.

13. One small photograph of Ramchandra Ji.

14. Ornaments of Deity

Two caps of Ramlala and one cap of Hanuman Ji.

And eight robes of Deity.

15. Building- Three domed building with Courtyard and

boundary wall, which is bounded as under.

North-Premises comprising Chhathi Courtyard and Nirmohi Akhara.

South-Vacant land and ―Parikrama‖ (circumambulation path)
East-‗Chabutara‘ (platform) of Ram temple under possession

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of Nirmohi Akhara, and Courtyard of temple premises. West-

Parikrama‘ (circumambulation path)

16. Small brass glass

17. One bowl of ―Phool‖ (an alloy) for sandal.

18. ―Panch Pas‖ and one brass plate.

19. One small brass plate.

20. One small wooden board.‖

In the course of the proceedings of the civil suit before the Trial Court at

Faizabad, the pleader, Shiv Shankar Lal, was appointed as a Commissioner to

prepare a site plan of the locality and building. The Commissioner submitted a

report on 25 May 1950, annexing two site plans which were numbered as Plan

nos 1 and 2 which have been referred above in the earlier part of the judgment.

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

(i) The existence of two entry gates to the disputed site, described as

Hanumat Dwar and Singh Dwar;

(ii) The presence of two black Kasauti stone pillars at the entry point of

Hanumat Dwar containing engraved images of ‗Jai‘ and ‗Vijai‘;

(iii) The images of a ‗Garud‘ flanked by lions on either side above

Singh

Dwar;

(iv) An engraved stone image of a boar (‗varah‘) on the outer wall, to

the south of Hanumat Dwar;

(v) Ramchabutra admeasuring 17 X 21 feet containing a small temple

with idols of Lord Ram and Janki;

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(vi) On the south-eastern corner, a semi-circular platform attached to

the neem-pipal tree containing idols of Panchmukhi Mahadev,

Parvati, Ganesh and Nandi;

(vii) The platform called Sita Rasoi containing the foot prints of Lord

Ram, Lakshman, Bharat and Shatrughan;

(viii) The railing separating the inner and outer

courtyards;

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(ix) The presence of twelve black Kasauti stone pillars supporting the

three arches of the mosque which contained carvings of:

(a) Lotus flowers;

(b) Tandava nritya;

(c) Lord Hanuman; and (d) Lord Krishna.

(Carvings on the other pillars had been obliterated);

(x) The idol of infant Lord Ram placed on a platform with two steps in

the central portion of the domed structure;

(xi) A parikrama around the disputed structure; and

(xii) The existence of structures surrounding the disputed site including

huts of sadhus/bairagis and the wall called ‗sita-koop‘.

F. Points for determination

The following points for determination arise in these appeals:

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

(ii) Whether the decision in Suit 81/280 of 1885 will operate as res

judicata in Suits 1, 3 and 5;

(iii) (a) Whether a Hindu temple existed at the disputed site;

(b) Whether the temple was demolished by Babur or at his behest by

his commander Mir Baqi in 1528 for the construction of the Babri

Masjid;
(c) Whether the mosque was constructed on the remains of and by

using the materials of the temple; and

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(d) What, if any are the legal consequences arising out of the

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

(iv) Whether the suit property is according to the faith and belief of the

Hindus since time immemorial the birth-place of Lord Ram;

(v) (a) Whether the first and the second plaintiffs in Suit 5 are juristic

persons;

(b) Whether the third plaintiff was entitled to represent the first and

second plaintiffs as next friend;

(vi) (a) Whether Nirmohi Akhara has established its claim of being a
shebait

of the deity of Lord Ram in the disputed premises;

(b) If (a) is in the affirmative, whether the objection of Nirmohi Akhara to

the maintainability of Suit 5 is valid;

(vii) Whether during the intervening night of 22/23 December 1949,

Hindu idols were installed under the Central dome of Babri Masjid

as pleaded in the plaint in Suit 4;

(viii) (a) Whether it is open to the Court to determine if the three

domed

structure which existed at the disputed site prior to 6 December

1992 was a mosque in accordance with Islamic tenets;

(b) If the answer to (a) is in the affirmative, whether the three domed

structure at the disputed site was constructed in accordance with

Islamic tenets;

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(ix) (a) Whether there was a dedication of the three domed structure as
a

waqf at the time of its construction;

(b) In the alternative to (a) above, whether there is a waqf by public user

as claimed by the plaintiffs in Suit 4;

(x) Whether the plaintiffs in Suit 4 have established in the alternative

their case of adverse possession;

(xi) Whether the Muslims and or the Hindus have established the claim

of worship and a possessory title over the disputed property;

(xii) Whether the plaintiffs in Suit 4 have established their title to the

disputed property;

(xiii) Whether the plaintiff in Suit 5 have established their title to the

disputed property;

(xiv) Whether the High Court was justified in passing a preliminary

decree for a three way division of the disputed property in equal

shares between the Nirmohi Akhara, the plaintiffs of Suit 4 and the

plaintiffs of Suit 5;

(xv) Whether the plaintiff in Suit 1 is entitled to the reliefs as claimed in

the suit; and

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

These points will be analysed and dealt with in the course of this judgment.

Before analysing the issues in the individual suits, it would be appropriate to

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discuss certain matters in dispute at the forefront, since they traverse the gamut

of the entire case.

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G. The three inscriptions

53. The case of the Sunni Central Waqf Board and other plaintiffs in Suit 4 is that

in the town of Ayodhya ―there exists an ancient historic mosque commonly

known as Babri Masjid built by Emperor Babur more than 433 years ago, after his

conquest of India and his occupation of the territories including the town of

Ayodhya‖. The mosque, it has been pleaded, was for the use of Muslims in

general as a place of worship and for the performance of religious ceremonies.

The mosque and the adjoining graveyard are stated to vest ―in the Almighty‖

and the mosque since the time of its inscription is stated to have been used by

Muslims for offering prayers. Thus, the plaintiffs have come forth with a positive

case in regard to the:

(i) Existence of a mosque;

(ii) Construction of the mosque by Babur 433 years prior to the institution of

the Suit in 1961;

(iii) Construction of the mosque as a place of worship and for religious

ceremonies; and

(iv) Use of the mosque since its construction for the purpose of offering

prayers.

54. Justice Sudhir Agarwal recorded in his judgment that it is accepted by the

counsel appearing on behalf of the Sunni Central Waqf Board that the sole

basis for determining the date of the construction of the mosque and

correlating it to Babur consists of the inscriptions stated to have been

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installed on the mosque as referred to in the gazetteers and other

documents. In paragraph 1435, the learned Judge observed:

―Broadly, we find and in fact it is even admitted by Sri Jilani

that the sole basis for determining the period of construction
of the disputed building and to co-relate it with Emperor Babar
is/are the inscription(s) said to be installed in the disputed
building referred to in certain Gazetteers etc.‖

Now both before the High Court and during the course of the present

proceedings, there has been a debate on whether the texts of the alleged

inscriptions on the mosque have been proved. Mr P N Mishra, learned Counsel

appearing on behalf of the Akhil Bharatiya Shri Ram Janmabhumi Punrudhar

Samiti has questioned the authenticity of the inscriptions. He sought to cast doubt

on whether the mosque was constructed in 1528 A.D. by or at the behest of

Babur.

55. The first document relied on is the text by Fuhrer titled ―The Sharqi

Architecture of Jaunpur with notes on Zafarabad, Sahet-Mahet and

other places in the Northern-Western Provinces and Oudh 24. The

original edition of the book was printed in 1889 and there is a reprint in

1994 by the ASI. In Chapter X, there is a reference to three inscriptions

bearing nos XL, XLI, and XLII. It is from these three inscriptions that

Fuhrer formed an opinion that the Babri mosque was constructed at

Ayodhya in 1523 A.D or A.H. 930. Inscription XL in Arabic is over the

central mihrab and furnishes the Kalimah twice in the following words:

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

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―There is no god but Allah, Muhammad is His Prophet.‖

Inscription XLI was found on the mimbar and was written in Persian. The

inscription as translated in English reads thus:

―1. By order of Babar, the king of the world,

2. This firmament-like, lofty,
3. Strong building was erected.
4. By the auspicious noble Mir Khan.
5. May ever remain such a foundation,
6. And such a king of the world.‖

Inscription XLII was found above the entrance door. Also, in Persian, the

inscription has been translated thus:

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

2. In the name of him who …...; may God perpetually keep
him in the world. 3…........
4. Such a sovereign who is famous in the world, and in
person of delight for the world.
5. In his presence one of the grandees who is another king of
Turkey and China.
6. Laid this religious foundation in the auspicious Hijra 930.
7. O God ! May always remain the crown, throne and life with
the king.
8. May Babar always pour the flowers of happiness; may
remain successful.
9. His counsellor and minister who is the founder of this fort
masjid.
10. This poetry, giving the date and eulogy, was written
by the lazy writer and poor servant Fath-allah-Ghorl,
composer.‖

After adverting to the inscriptions, Fuhrer notes:

―The old temple of Ramachandra at Janamasthanam must

have been a very fine one, for many of its columns have been
used by the Musalmans in the construction of Babar's masjid.
These are of strong, close-grained, dark-coloured or black
stone, called by the natives kasauti, ―touch-stone slate,‖ and
carved with different devices. They are from seven to eight
feet long, square at the base, centre and capital, and round or
octagonal intermediately.‖

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56. The second piece of documentary evidence in which these inscriptions are

purportedly translated the ―Babur-Nama‖. The translation by A S

Beveridge was first published in 192125. Apart from the book, extracts of

some of its pages were exhibited by the parties to the proceedings.

Appendix (U) refers to two inscriptions; one inside and another outside the

mosque. Photocopies of the pages of appendix (U) were marked as appendix T3

in Suit 4.

57. Beveridge obtained the text of the inscription through the Deputy

Commissioner of Faizabad on a request made by her spouse. Beveridge

notes that while reproducing the text she had made a few changes. The

text of the inscription inside the mosque, as quoted by Beveridge is as

follows:

―(1) By the command of the Emperor Babur whose justice is

an edifice reaching up to the very height of the heavens.

2. The good-hearted Mir Baqi built this alighting place of

angels.

3. It will remain an everlasting bounty, and (hence) the date

of its erection became manifest from my words: It will
remain an everlasting bounty.‖

The text of the inscription outside the mosque is thus:

―1. In the name of One who is Great (and) Wise (and) who
is Creator of the whole world and is free from the bondage of
space.
25 William Erskine, John Leyden, and Annette Susannah Beveridge, the B bur-nama in English (Memoirs of B
bur), London: Luzac & Co. (Reprint in 2006 by Low Price Publications, Delhi)

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2. After His praise, peace and blessings be on Prophet

Muhammad, who is the head of all the Prophets in both the
worlds.

3. In the world, it is widely talked about Qalandar Babur

that he is a successful emperor.‖

Beveridge stated that the second inscription outside the mosque was

incomplete.

58. The third set of texts in support of the inscriptions is published in

―Epigraphia Indica-Arabic-Persian Supplement (In continuation of

Epigraphia Indo-Moslemica) 1964 and 1965‖26 (reprinted in 1987). This has

been published by the Director General, ASI and contains a reference to the

inscriptions of Babur. The text is attributed to Maulvi M Ashraf Husain and is

edited by Z A Desai. The introductory note to the edition states:

―A rough draft of this article by the author, who was my

predecessor, was found among sundry papers in my office.
At the time of his retirement in 1953, he had left a note
saying that it might be published after revision by his
successor. Consequently, the same is published here after
incorporation of fresh material and references and also,
extensive revision and editing. The readings have been also
checked, corrected and supplemented with the help of my
colleague, Mr. S.A.Rahim, Epigraphical Assistant,-Editor.‖

The text contains the following description in regard to the construction of Babri

Masjid:

―The Baburi-Masjid, which commands a picturesque view

from the riverside, was constructed according to A. Fuhrer in
A.H. 930 (1523-24 A.D.) but his chronology, based upon
incorrect readings of inscriptions supplied to him, is
erroneous. Babur defeated Ibrahim Lodi only in A.H. 933

26 Epigraphia Indica, Arabic and Persian Supplement (in continuation of Epigraphia Indo-Moslemica) (Z A Desai
Eds), Archaeology Survey of India (1987)

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(1526 A.D.), and moreover, the year of construction, recorded

in two of the three inscriptions studied below, is clearly A.H.
935 (1528-29 A.D.). Again, it was not built by Mir Khan as
stated by him. The order for building the mosque seems to
have been issued during Babur's stay at Ajodhya in A.H. 934
(1527-28 A.D.), but no mention of its completion is made in
the Babur Nama. However, it may be remembered that his
diary for the year A.H. 934 (1527-28 A.D.) breaks off abruptly,
and throws the reader into the dark in regard to the account of
Oudh.‖

The text also provides an account of the manner in which the author obtained an

inked rubbing of one of the inscriptions from Sayyid Badru‘l Hasan of Faizabad:

―The mosque contains a number of inscriptions. On the

eastern facade is a chhajja, below which appears a Quranic
text and above, an inscription in Persian verse. On the central
mihrab are carved religious texts such as the Kalima (First
Creed), etc. On the southern face of the pulpit was previously
fixed a stone slab bearing a Persian inscription in verse.
There was also another inscription in Persian verse built up
into the right hand side wall of the pulpit. Of these, the
lastmentioned two epigraphs have disappeared. They were
reportedly destroyed in the communal vandalism in 1934
A.D., but luckily, I managed to secure an inked rubbing of one
of them from Sayyid Badru'l Hasan of Fyzabad. The present
inscription, restored by the Muslim community, is not only in
inlaid Nasta‘liq characters, but is also slightly different from
the original, owing perhaps to the incompetence of the
restorers in deciphering it properly.

The readings and translations of the historical epigraphs

mentioned above, except in the case of one, were published
by Fuhrer and Mrs. Beveridge, but their readings are so
incomplete, inaccurate and different from the text that their
inclusion in this article is not only desirable but also
imperative.

The epigraph studied below was inscribed on a slab of stone

measuring about 68 by 48 cm., which was built up into the
southern side of the pulpit of the mosque, but is now lost, as
stated above. It is edited here from the estampage obtained
from Sayyid Badru'l Hasan of Fyzabad. Its three-line text
consists of six verses in Persian, inscribed in ordinary Naskh
characters within floral borders. It records the construction of
the mosque by Mir Baqi under orders from emperor Babur
and gives the year A.H. 935 (1528-29 A.D.) in a chronogram.‖

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The author states that on the southern side of the pulpit of the mosque was an

inscription fixed on a slab of stone measuring 68 X 48 cm but the original was

lost. What is quoted is the version obtained from the inked rubbing noted above.

The text of the first inscription was thus:

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

(2) This descending place of the angels was built by the

fortunate noble Mir Baqi.

(3) It will remain an everlasting bounty, and (hence) the

date of its erection became manifest from my words: It will
remain an everlasting bounty.‖

As regards the second inscription, the judgment of Justice Sudhir Agarwal notes:
―1449. Fuhrer‘s inscription no. XLI which he mentions that
the same was found inside the mosque on the mimbar (right
hand side of the disputed building) has been termed as
second inscription by Maulvi F. Ashraf Hussain. It consists of
three couplets arranged in six lines. He (Hussain) clearly
admits non existence of the said inscription by observing
―the epigraphical Tablet‖ which was built up into right hand
side wall of the pulpit, does not exist now, and, therefore, the
text of the inscription is quoted here from Furher‘s work, for
the same reason, its illustration could not be given.‖
Husain/Desai however, did not agree to the reading of the
inscription by
Fuhrer and observed that Furher‘s reading does not appear
free from mistakes.‖

The text of the third inscription is as follows:

―(1) In the name of Allah, the Beneficent, the Merciful. And

in Him is my trust.

(2) In the name of One who is Wise, Great (and) Creator

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

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(3) (He is) such (an emperor) as has embraced (i.e.

conquered) all the seven climes of the world in the manner of
the sky.
In his court, there was a magnificent noble, named Mir Baqi
the second Asaf, councillor of his Government and
administrator of his kingdom, who is the founder of this
mosque and fort-wall.

(4) O God, may he live for ever in this world, with fortune
and life and crown and throne. The time of the building is this
auspicious date, of which the indication is nine hundred (and)
thirty five (A.H. 935=1528-29 A.D.).
Completed was this praise of God, of Prophet and of king.
May Allah illumine his proof. Written by the weak writer and
humble creature, Eathu'llah Muhammad Ghori.‖

As regards the inscriptions noted by Fuhrer, certain significant aspects need to

be noted. While the second inscription contains a reference to the order of Babur

for the construction of the mosque, construction is attributed to Mir Khan (not Mir

Baqi). The third inscription refers to the foundation of the construction of the

mosque being laid in Hijri 930 which corresponds to 1523 A.D. This is prior to the

invasion by Babur and the battle at Panipat which resulted in the defeat of

Ibrahim Lodhi. As regards the work of Beveridge, it is evident that she had

neither seen the original text nor had she translated the text of the inscriptions

herself. Beveridge obtained a purported text of the inscriptions through her

spouse from the Deputy Commissioner, Faizabad. Beveridge claimed that she

received a copy of the text through correspondence initiated by her spouse who

was an ICS officer in the colonial government. She had neither read the original

nor is there anything to indicate that she was in a position to translate it.

Beveridge states that she made ―a few slight changes in the term of

expression‖. What changes were made by Beveridge has not been explained.

According to her, the text of the two inscriptions was incomplete and was not
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legible. The text provided by Fuhrer shows that the construction of the mosque

was not in 1528 A.D. Inscription XLI mentions the name of Mir Khan while

inscription XLII refers to the construction of the mosque as Hijri 930.

59. Justice Sudhir Agarwal while adverting to the work of Ashraf Husain and Z

A Desai took serious note of the ―fallacy and complete misrepresentation‖ of the

author in publishing a text under the authority of the ASI without regard for its

accuracy, correctness and genuineness:

―1463. We are extremely perturbed by the manner in which

Ashraf Husain/Desai have tried to give an impeccable
authority to the texts of the alleged inscriptions which they
claim to have existed on the disputed building though
repeatedly said that the original text has disappeared. The
fallacy and complete misrepresentation on the part of author
in trying to give colour of truth to this text is writ large from a
bare reading of the write up. We are really at pains to find
that such blatant fallacious kind of material has been allowed
to be published in a book published under the authority of
ASI, Government of India, without caring about its accuracy,
correctness and genuineness of the subject.
…Both these inscriptions i.e., the one claimed to be on the
southern face of the pulpit and the other on the right hand
side wall of the pulpit are said to be non-available by
observing ―of these the last mentioned two epigraphs have
disappeared‖. The time of disappearance according to Maulvi
Ashraf Husain was 1934 A.D. when a communal riot took
place at Ayodhya. However, he claimed to have got an inked
rubbing on one of the two inscriptions from Syed Badrul
Hasan of Faizabad. The whereabouts of Syed Badrul Hasan,
who he was, what was his status, in what way and manner he
could get that ink rubbing of the said inscription and what is
the authenticity to believe it to be correct when original text of
the inscription are not known. There is nothing to co-relate the
text he got as the correct text of the inscription found in the
disputed building claimed to have lost in 1934.‖

The High Court observed that two inscriptions, those on the southern face of the

pulpit and on the wall on the right of the pulpit were not available. According to

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Ashraf Husain, the epigraphs disappeared in 1934 at the time of the communal

riot. However, reliance was sought to be placed on an alleged ―inked rubbing‖

without explaining the identity or whereabouts of the person from whom it was

obtained. The criticism of the High Court is not without basis. The identity of the

individual from whom the inked rubbings were obtained was not explained. Nor

was there any explanation about the manner in which he had in turn obtained it.

There was indeed nothing to co-relate the text which that individual had obtained

with the translation in the text compiled by Ashraf Husain and Z A Desai. The

High Court observed:

―1464…When the original was already lost and there was
nothing to verify the text of restored inscription with the
original, neither the restored one can be relied upon nor is it
understandable as to how he could have any occasion to
compare the restored one with the alleged… original…‖

In this background, the High Court observed:

―1466…The text, description and whatever had been set up
by Ashraf Husain in respect of the above inscription is
unbelievable and lacks trustworthiness. We are constrained to
observe at this stage that in the matter of historical events
and that too, when it bears a religious importance and the
matter has also seen serious disputes between two
communities, the persons who are connected with history…
must behave responsibly and before making any write up,
should check up, cross check and verify very carefully what
they are writing since the consequences of their write up may
be dangerous and irreparable.‖

60. A fourth version of the inscriptions emerged pursuant to a direction of the

Civil Judge dated 26 March 1946 in Shia Central Waqf Board v Sunni

Central Board of Waqf27. In pursuance of those directions, a person by

the name of Sr. A Akhtar Abbas is stated to have read an inscription and

prepared his inspection note. The High Court, however, noted that the text
27 Regular Suit No 29 of 1945

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as reproduced in the judgment dated 30 March 1946 states that in the first

inscription, the words are ―by the order of Shah Babar, Amir Mir Baki built

the resting place of angels in 923 A.H.

i.e. 1516-17 A.D‖. In respect of the second inscription, there is a reference to

―Mir Baki of Isphahan in 935 A.H. i.e. 1528-29 AD‖. The High Court observed

that it was not apprised of whether in the entire Babur-Nama, there was a

reference to any Mir Baki Isphahani though, there was a reference to Baki

Tashkendi. Besides one of the two tablets was new and had been replaced for

the original tablet which had been demolished during the communal riots of 1934.

On the above state of the evidence, the High Court doubted the genuineness and

authenticity of the transcripts of the inscriptions which were relied upon before it.

61. At this stage, it is necessary to make a reference to the ―Tuzuk-i-

Babri‖28.

The Babur-Nama contains the daily diary of Babur commencing from 899 Hijri

(1494 AD). Out of the life span of Babur, a description of eighteen years is

available over different periods. Babur came to India in 1526 A.D. The description

available until his death is for the following periods, (noted by Justice Sudhir

Agarwal):

―1487…
1. From 1 Safar 932 Hijri (17 November 1525 AD) till 12
Rajab 934 Hijri (2nd April 1528 AD)
2. From 3 Muharram 934 Hijri (18th September 1528 AD) till
3
Moharram 936 Hijri (7th September 1529 AD).‖

The records for the period from 2 April 1528 till 17 September 1528 are missing.

28 Rashid Akhtar Nadvi, Tuzk e Babri, Lahore: Sang e Mil (1995)

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Out of this period, the period from 2 April 1528 to 15 September 1528 was of 934

Hijri while the period from 15 September 1528 to 17 September 1528 was of 935

Hijri. Justice Sudhir Agarwal noted in the High Court that the crucial year was 935

Hijri and the missing record was only of three days.

Babur defeated Ibrahim Lodhi at Panipat on 20 April 1526. On 28 March 1528,

Babur reached the junction of the rivers Ghaghara and Saryu. After a reference to

the date 2 April 1528, there is a break until 15 September 1528.

62. Beveridge‘s translation of Babur-Nama refers to the employment of

artisans in the construction of buildings at several places including at Agra

and

Gwalior:
―1533… Another good thing in Hindustan is that it has
unnumbered and endless workmen of every kind. There is a
fixed caste (jam'i) for every sort of work and for everything,
which has done that work or that thing from father to son till
now. Mulla Sharaf, writing in the Zafar-nama about the
building of Timur Beg's Stone Mosque, lays stress on the fact
that on it 200 stone-cutters worked, from Azarbaijan, Fars,
Hindustan and other countries. But 680 men worked daily on
my buildings in Agra and of Agra stone-cutters only; while
1491 stone-cutters worked daily on my buildings in Agra,
Sikri, Biana, Dulpur, Gualiar and Kuil. In the same way there
are numberless artisans and workmen of every sort in
Hindustan.‖

In this context, Justice Agarwal observed:

―1534. There is mention of buildings in Babur-Nama at

different places including temple of Gwalior, mosque at Delhi,
Agra, Gwalior and other several places but it is true that
neither there is mention of demolition of any religious place by
Babar in Awadh area nor there is anything to show that he
either entered Ayodhya or had occasion to issue any direction
for construction of a building and in particular a Mosque at

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Ayodhya.‖

The High Court recorded the submission made before it by Mr Jilani, counsel for

the Sunni Central Waqf Board, in paragraph 1577 of the judgment that since

Babur did not enter Ayodhya himself, there was no question of a demolition of a

temple by him and a construction of a mosque. The absence in Babur-Nama of a

reference to the construction of a mosque has been relied upon as a factor to

discredit the inscriptions which have been analysed earlier. This line of enquiry

must be read with the caution which must be exercised while drawing negative

inferences from a historical text.

63. Mr P N Mishra, learned Counsel adverted to the work of Niccolao Manucci

titled ―Indian Texts Series-Storia Do Mogor or Mogul India 1653-1708‖29,

translated in English by William Irvine. Manucci identifies ―the chief temples

destroyed‖ by Aurangzeb, among them being:

(i) Maisa (Mayapur);

(ii) Matura (Mathura);

(iii) Caxis (Kashi); and

(iv) Hajudia (Ajudhya).

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

Besides, the work of Manucci, there is the ―Ain-e-Akbari‖32 written by Abul

Fazal Allami. Ain-e-Akbari deals with the province of Oudh and refers to Ayodhya

29 Manucci, Niccol , and William Irvine, Storia do Mogor; or, Mogul India, 1653-1708, J. Murray: London (1907).
32
Ab al-Faz l ibn Mub rak and H. Blochmann, The Ain i Akbari, 1873, Calcutta: Rouse (Reprint of 1989
published by Low Price Publications, Delhi)

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and its association with Lord Ram. The text refers to ―two considerable tombs of

six and seven yards in length‖ near the city. The text identified several sacred

places of pilgrimage. It specifically speaks of Ayodhya where during the month of

Chaitra, a religious festival is held. Mr Mishra urged that there is no reference in

the Ain-e-akbari to the construction of a mosque at Ayodhya. The text refers to

certain cities as being dedicated to the divinities, among them being Kashi and

Ayodhya. By its order dated 18 March 2010, the High Court permitted the above

text to be relied on under the provisions of Section 57(13) of the Evidence Act

1872.

64. Rebutting the above submissions principally urged by Mr P N Mishra and

Mr Mohd Nizamuddin Pasha, learned Counsel appeaing on behalf of the plaintiffs

in Suit 4 urged that an unnecessary confusion was sought to be created over the

identity of Mir Baqi. He submitted that in the Babur-Nama, he is known by the

following titles / suffixes:

(j) Baqi Sharghwal – ―high official of Central Asian sovereigns, who is

supreme over all qazis and mullah‖. (See ―Baburnama‖,

translated by A.S. Beveridge, 1921, p. 463);

(ii) Baqi Mingbashi – Commander of a thousand men (See

―Baburnama‖, translated by A.S. Beveridge, 1921, p. 590); and

(iii) Baqi Tashkinti – Hailing of Tashkent (See ―Baburnama‖,

translated by A.S. Beveridge, 1921, p. 601, 684).

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Mr Pasha urged that the inscriptions above the door of Babri Masjid read as Mir

Baqi Asif Sani, which the District Judge, Faizabad misread as ‗Isfahani‘ in his

order of 1946 in the suit between the Shia Waqf Board and Sunni Waqf Board.

65. Having set out the material which was presented before the High Court in

support of the plea that the mosque was constructed in 1528 by Mir Baki, on the

instructions of Emperor Babur following the conquest of the sub-continent, it

becomes necessary to analyse the conclusions which have been arrived at by

the three judges of the High Court :

(i) Justice S U Khan

Justice S U Khan held:

―Muslims have not been able to prove that the land

belonged to Babur under whose orders the mosque was
constructed‖

Moreover, the learned judge held that the inscriptions on the mosque as

translated by Fuhrer, Beveridge and Z A Desai were not authentic and hence,

on the basis of these inscriptions alone, it could not be held either that the

disputed building was constructed by or under the orders of Babur or that it was

constructed in 1528. Justice S U Khan specifically observed that:

―In this regard detailed reasons have been given by my

learned brother S. Agarwal, J. with which I fully agree‖.

However, in the course of his conclusions titled as ―Gist of the Findings‖ Justice

Khan held:

― 1. The disputed structure was constructed as mosque by

or under orders of Babar.
2. It is not proved by direct evidence that premises in dispute
including constructed portion belonged to Babar or the

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person who constructed the mosque or under whose orders

it was constructed.‖

The conclusion in point 1 in the above extract of the conclusions is contrary to the

earlier finding that it could not be held either that the mosque was constructed by

or under the orders of Babur or that it was constructed in 1528. The finding on

point 1 is also contrary to the specific observation that Justice S U Khan was in

agreement with the decision of Justice Sudhir Agarwal in regard to the lack of

authenticity of the inscriptions.

(ii) Justice Sudhir Agarwal

Justice Sudhir Agarwal held:

―1679... it is difficult to record a finding that the building in

dispute was constructed in 1528 AD by or at the command of
Babar since no reliable material is available for coming to the
said conclusion. On the contrary the preponderance of
probability shows that the building in dispute was constructed
at some later point of time and the inscriptions thereon were
fixed further later but exact period of the two is difficult to
ascertain…
...
1681. In the absence of any concrete material to show the
exact period and the reign of the concerned Mughal emperor
or anyone else during which the above construction took
place, we are refraining from recording any positive finding on
this aspect except that the building in dispute, to our mind,
may have been constructed much later than the reign of
Emperor Babar and the inscriptions were fixed further
thereafter and that is why there have occurred certain
discrepancies about the name of the person concerned as
also the period. The possibility of change, alteration or
manipulation in the inscriptions cannot be ruled out.‖

While answering the issues framed in the suits, Justice Agarwal held:

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―1682... (A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) are
answered in negative. The defendants have failed to prove
that the property in dispute was constructed by… Emperor
Babar in 1528 AD. Accordingly, the question as to whether
Babar constructed the property in dispute as a 'mosque' does
not arise and needs no answer.
(B) Issue No.1(a) (Suit-4) is answered in negative. The
plaintiffs have failed to prove that the building in dispute was
built by Babar. Similarly defendant no.13 has also failed to
prove that the same was built by Mir Baqi. The further
question as to when it was built and by whom cannot be
replied with certainty since neither there is any pleading nor
any evidence has been led nor any material has been placed
before us to arrive at a concrete finding on this aspect.
However, applying the principle of informed guess, we are of
the view that the building in dispute may have been
constructed, probably, between 1659 to 1707 AD i.e. during
the regime of Aurangzeb.‖

In the last part of the above findings, the Judge has recorded that it was not

possible to enter a finding of fact with any certainty as to when the structure was

constructed in the absence of pleading or evidence. The ―informed guess‖ at

the end of the above observation that the structure was probably constructed by

Aurangzeb between 1659-1707 cannot be placed on the pedestal of a finding of

fact.

(iii) Justice D V Sharma

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

―Thus, on the basis of the opinion of the experts, evidence

on record, circumstantial evidence and historical accounts…,
it transpires that the temple was demolished and the mosque
was constructed at the site of the old Hindu temple by Mir
Baqi at the command of Babur. Issue Nos. 1 and 1(a) are
decided in favour of the defendants and against the
plaintiffs.‖

66. The High Court entered into the controversy surrounding the authenticity of

the inscriptions on the basis of the hypothesis that the inscriptions were the sole
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basis for asserting that the mosque had been constructed by Babur. Justice

Agarwal came to the conclusion that the inscriptions were not authentic and

hence a finding that the mosque was constructed by or at the behest of Babur in

1528 A.D. could not be arrived at. Justice S U Khan‘s reasoning in the text of the

judgment was in accord with the view of Justice Agarwal but then, as we have

noted, his ultimate conclusion that the disputed structure was constructed as a

mosque by or under the orders of Babur is not consistent with the earlier part of

the reasons. Justice Sharma held that the mosque was constructed by Mir Baqi

at the command of Babur.

67. The basic issue, however, is whether it was necessary for the High Court

to enter into this thicket on the basis of the pleadings of the parties. In the suit

instituted by the Sunni Central Waqf Board (Suit 4), the case is that the mosque

was constructed by Babur after his conquest and occupation of the territories,

including the town of Ayodhya. Significantly, Suit 5 which has been instituted on

behalf of Lord Ram and Ram Janmabhumi through a next friend also proceeds

on the basis that the mosque was constructed by Mir Baqi who was the

commander of Babur‘s forces. The pleading in the plaint in Suit 5 reads thus:

―23. That the books of history and public records of

unimpeachable authenticity, establish indisputably that there
was an ancient Temple of Maharaja Vikramaditya‘s time at
Sri Rama Janma Bhumi, Ayodhya. That Temple was
destroyed partly and an attempt was made to raise a
mosque thereat, by the force of arms, by Mir Baqi, a
commander of Babar‘s hordes. The material used was
almost all of it taken from the Temple including its pillars
which were wrought out of Kasauti or touch-stone, with
figures of Hindu gods and goddesses carved on them. There
was great resistance by the Hindus and many battles were

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fought from time to time by them to prevent the completion of

the mosque. To this day it has no minarets, and no place for
storage ov f water for Vazoo. Many lives were lost in these
battles. The last such battle occurred in 1855. Sri Rama
Janma Bhumi, including the building raised during the
Babar‘s time by Mir Baqi, was in the possession and
control of Hindus at that
time.‖ (Emphasis supplied)

Immediately following the text of the pleading in the above extract, is a reference

to the 1928 edition of the Faizabad Gazetteer. The text of the gazetteer is

incorporated in the plaint and reads thus:

―23…In 1528 Babar came to Ayodhya and halted here for a

week. He destroyed the ancient temple and on its site built a
mosque, still known as Babar‘s mosque. The materials of the
old structure were largely employed, and many of the
columns are in good preservation, they are of close-grained
black stone, called by the natives kasauti and carved with
various device.‖

68. The pleading in Suit 5 demonstrates that even according to the plaintiffs, the

mosque was built by Mir Baqi, a commander of Babur‘s forces, during the time of

Babur. Hence, both in the pleading in Suit 4 and in Suit 5, there was essentially

no dispute about the fact that the mosque was raised in 1528 A.D. by or at the

behest of Babur. The case in Suit 5 is that the Hindus retained possession and

control over the mosque. This is a separate matter altogether which has to be

adjudicated upon. But, from the pleadings both in Suit 4 and in Suit 5, there

appears to be no dispute about the origin or the date of construction of the

mosque. Nirmohi Akhara in Suit 3 did not accept that the structure is a mosque at

all for, according to it, the structure has always been a Hindu temple which has

been managed by the Nirmohis at all material times. The Nirmohis‘ disputed the

very existence of a mosque, claiming it to be a temple. The case of the Nirmohis

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will be considered separately while assessing the pleadings, evidence and issues

which arise in Suit 3. But, on the basis of the pleadings in Suit 4 and Suit 5, the

controversy in regard to the authenticity of the inscriptions will not have any

practical relevance.

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There is another reason for adopting this line of approach. In the ultimate

analysis, whether the mosque was built in 1528 (as both sets of plaintiffs in suit 4

and suit 5 have pleaded) or thereafter would essentially make no difference to the

submissions of the rival sides. The plaintiffs in Suit 4 have stated before this

Court that the records on which they place reliance in regard to their claim of

worship, use and possession commence around 1860. This being the position,

the precise date of the construction of the mosque is a matter which has no

practical relevance to the outcome of the controversy having regard to the

pleadings in Suits 4 and 5 and the positions adopted by the contesting Hindu and

Muslim parties before this Court.

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

69. Mr P N Mishra, learned Counsel appearing on behalf of defendant no 20 in

Suit 5 (Akhil Bharatiya Shri Ram JanmBhumi Punrudhar Samiti) has made

an earnest effort to demonstrate that the Babri Masjid lacked the essential

features of a valid mosque under Islamic jurisprudence. The submissions,

essentially deal with two facets:

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

and

(ii) The requirements for a valid dedication.

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In this segment, the first limb of the submissions is addressed. Whether there

was a valid dedication will be addressed in a separate segment in Suit 4. Mr

Mishra urged that Babri Masjid cannot be treated to be a valid mosque since it

lacked essential features in relation to location, design and construction.

70. Before the High Court, the following issues were framed in Suit 4:

Issue no 1 in Suit 4 - Whether the building in question described as a mosque in

the sketch map attached to the plaint was a mosque as claimed by the plaintiffs;

If the answer is in the affirmative:

(a) When was it built and by whom-whether by Babur as alleged by the

plaintiffs or by Mir Baqi as alleged by defendant no. 13; and

(b) Whether the building had been constructed on the site of an alleged Hindu

temple after demolishing the same as alleged by defendant no. 13. If so,

its effect.

Issue No 19(d) – Whether the building in question could not be a mosque under

Islamic Law in view of the admitted position that it did not

have minarets.

Issue No 19(e) – Whether the building in question could not legally be a mosque

as on plaintiffs‘ own showing it was surrounded by a graveyard on three sides.

Issue No 19(f) – Whether the pillars inside and outside the building in question

contain images of Hindu Gods and Goddesses. If the finding is in the affirmative,

whether on that account the building in question cannot have the character of

mosque under the tenets of Islam.

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71. The written statement of defendant no 20 provides the basis for the

assertion that Babri Masjid did not fulfil or abide by the features required for a

mosque in Islamic jurisprudence:

―…(1) The tomb of this disputed Masjid if it is to be looked

from behind would show that it is not in the style developed
by Turkis during fifteenth century, nor the Mehrab of the
Masjid in that style is to be found. Thus there is no tomb in
the disputed Masjid as is to be found in other mosques
generally.
(2) On the north door in the front facing each other there are
two tigers. They are in the style of taking leaps and their
tails are just in the same style when a tiger takes the
leap. Between these two tigers there is a peacock. This
is not a characteristic of a mosque.
(3) The various Hindu idols are painted or their scriptions are
to be found in the disputed mosque.
(4) In the disputed mosque there is no provision for reciting
Namaz. To this day it has no minerettes, no place for
storage of water for Vazoo.
(5) The Muslim Faith as adumbrated in Holy Koran does not
permit the construction of a mosque on the site of temple
after demolishing the temple.
(6) Babur never dedicated the property of disputed mosque
to ALLAH. Even supposing without admitting that Babur
constructed the disputed mosque, yet as it has been
done by committing trespass, demolishing the Temple,
the abode of God, either by Babur or at his instance by
Mir Baqi, the Governor of Oudh, the dedication is wholly
invalid and void. The material of the old temple was
largely employed in building the mosque and a few of the
original columns are still in good preservation. They are
of closed grained black stone (Kasauti) bearing various
Hindi Bas-reliefs. The outer beam of the main structure
being of sandal wood, the height of the columns is 7 to 8
ft., the shape of the base, the middle Section and the
capital is square, the rest being round or octagonal . . . . .
Subsequently, Aurangjeb also desecrated the shrines of
Ayodhya which led to prolonged bitterness between
Hindus and Musalmans. Latter also occupied
Janmasthan by force and also made an assault on
Hanumangarhi. Attacks and counter attacks continued
under the leadership of Maulvi Amir Ali (See page 352 of
Faizabad Gazetteer 1960).
(7) A mosque must be built in a place of peace and quiet
and near a place where there is a sizeable and large
number of Muslim population. According to the Tenets of

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Islam, a mosque cannot be built at place which is

surrounded on all sides by temples where the sound of
music, of Conch shells or Ghanta Ghariyalis must always
disturb the peace and quiet of the place.
(8) A mosque must have minerette for calling the Ajan.
According to Baille ―When an assembly of worshippers pray
in Masjid with permission, i.e. delivery. But it is a condition
that prayers be with Ajan or the regular call and be public and
not private, for though there should be an assembly yet if it is
without Izah and the prayers are private instead of public, the
place is no Masjid according to the true disciples.‖ Indeed
there has been no mosque without a minerette after the first
half century fight. (See P.R. Ganapati Iyer‘s law relating to
Hindu and Muhammadan Endowments 2nd Edition 1918
Chapter XVII, page 388).
(9) According to the claim laid by the Muslims in the present
suit, the building is surrounded on sides by a graveyard
known as Ganj Shahidan. There is a mention in the
Faizabad Gazetteer also of the burial of seventy-five
Muslims at the gate of Janmasthan and the place being
known as Ganj Shahidan after the battle of 1855.
Although there are no graves anywhere near the building
at Sri Rama Janma Bhumi or in its precincts or the area
appurtenant thereto for the last more than 50 years and if
the building was surrounded by a graveyard during the
British times soon after the annexation of Audh by them
the building could not be mosque and could not be used
as a mosque for offering of prayers except the funeral
prayers.‖

72. The above challenge is sought to be buttressed by placing reliance on the

evidence of some of the Muslim witnesses. Relevant parts of the depositions of

these witnesses have been adverted to during the course of the hearing and are

reproduced below:

(i) Mohammad Idris (PW-10)

According to the witness:

―A building built on somebody‘s land by force will not be a
mosque. So, there is no question of its being legitimate or
illegitimate. Demolishing any place of worship is forbidden in
Islam. So, there is no question of breaking the same and
building a mosque instead. If the debris of any fallen temple

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is sold by its owner, then there is no prohibition on building a

mosque by purchasing such materials. It is another thing that
they cannot build a mosque by forcibly grabbing this debris.‖

On the depiction of the images of human beings, animals, birds or idols, the

witness stated:

―If an Imam has the knowledge that pictures of animals and

birds, or idols, or statues of human beings, or straight or
crooked images or representations of any women are
engraved in any structure , he will try to remove such
engraving before the recital of namaz. But if he does not do
so even then the namaz will get offered. I have already
spoken about the status and efficacy of such namaz. It will be
Makrooh in some circumstances and it will not be so in some
circumstances. If the Imam does not try to remove this types
of pictures and shapes, it will be a crime on his part.
Similarly it is mentioned in the ‗Shariyat‘ that if picture or idol
of any living being exists over the walls or pillars of mosque,
then the namaz offered there would be ‗Makruh‘
(undesirable) under certain situations. It is so mentioned in
the ‗Hidaya‘ of ‗Fiqh‘.‖

(ii) Mohd Burhanuddin (PW-11)

―It is true that there is a restriction on forcefully building a
mosque over someone else‘s land. If the ownership of
someone is proved over a land, then a mosque would not be
built over there in absence of the consent of owner. . . .If any
property belongs to a non-Muslim or even a Muslim, then a
mosque cannot be forcibly built over there under any
circumstance by demolishing the same. If it is so proved, then
the mosque would not be considered legal/proper.‖

The witness spoke of arrangements for Vazoo or ablution:

―Namaz can be offered even by performing ‗Taimum‘
(substitute for Vazoo), if ‗Vazoo‘ has not been performed and
there is no arrangement in the mosque for performing
‗Vazoo‘ and water is not ‗Dastyab‘ (available) even at distant
places . . . I have also seen such mosques, where there was
no arrangement for performing ‗Vazoo‘.‖

On human and other images, the witness stated:

―When any Muslim would build a mosque afresh, then he
would not get the picture of any living being be it animal-bird

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or male-female or God-Goddess, depicted inside it and if he

does so, he would be an offender. However, it would still be
called a mosque if other ‗Sharayat‘ are observed.‖

On whether a mosque can be constructed on the demolition of a building, the

witness stated:

―It is true that according to ‗Ehkam‘ (sanction) of the

prophet, if any building is demolished and mosque is built
from its debris, then the same is ‗Makruh‘ (not desirable).‖

(iii) Mohd Khalid Nadvi (PW-22)

The witness stated:

―It is true that a mosque will not be constructed by forcibly

demolishing a place of worship belonging to any religion.
Similarly it cannot be constructed by forcibly capturing a
place of worship belonging to any other religion.‖

According to the witness, if a place of worship belonging to a particular religion is

demolished, it would remain a place of worship for that faith and if it was proved

that a temple on a disputed site was forcibly demolished for the construction of a

mosque, the temple would continue to be treated as a temple:

―It is correct to say that if a place of worship belonging to a

particular faith is demolished, it will remain to be a place of
worship belonging to that very faith. It is correct to say that a
temple will not lose its character and will remain to be a
temple even if it is demolished to build a mosque. If any
mosque is demolished and a temple is constructed in its
place, the mosque will remain to be a mosque. If it is proved
that there was a temple on the disputed site forcibly
demolishing which a mosque was constructed, then such a
temple will continue to be treated as a temple.‖

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

According to the witness:

―vii. At one place, two separate buildings of worship or two
religions cannot exist.

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xv. Images, portraits, pictures, idols etc. as also designed garments

having pictures are prohibited in a mosque.
xvii. Musical instrument i.e. bell etc. is not permissible in
the mosque or in the vicinity thereof.
xviii. Where bells are ringing or conch shells are blown,
prayer would not be offered.‖

73. Mr Mishra, while placing reliance on the texts of the Hadees sought to urge

that there was a breach of the following cardinal principles of Islamic law:

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

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

(iii) A mosque should not contain visual images of idols, floral designs or

the human form;

(iv) No ringing of bells is permissible within the precincts of or in the area

surrounding the mosque;

(v) On one plot of land, two religious places are impermissible;

(vi) No preparation of food in a kitchen is permissible in or in closeproximity

to a mosque;

(vii) Land should not be usurped for the construction of a mosque; and

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

These submissions have been controverted by Mr Mohd Nizamuddin Pasha,

learned Counsel appearing on behalf of plaintiffs in Suit 4, both in the course of

his oral arguments and in written submissions. Mr Pasha urged:

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

(a) Babri Masjid had a specific place ear-marked for ablution;

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(b) In any event according to the Hadees, it is preferable to perform

ablution at home before coming to the mosque;

(c) The Hadees which have been cited state that bathing on Friday is a

must or indicate how Vazoo is to be performed;

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

(a) The purpose of the prohibition is to ensure that a worshipper is not

detracted from prayer;

(b) While a Muslim may claim that a picture is interfering with prayer, an

outsider cannot claim that a prayer is makruh because of the

presence of images in the mosque; and

(c) Pictures of lifeless things are not specifically disapproved.

(iii) As regards minarets:

(a) The first mosque of Islam neither had domes nor minarets; and

(b) A large number of mosques including of the same period, do not

have minarets.

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

(v) There cannot be two qiblas in one land. This is a misinterpretation of a

Hadees which means that a state cannot have two religions;

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

(a) In practical terms in a populated city, such an injunction is incapable

of being observed;

(b) Mosques in the vicinity of temples and ringing of bells was not

unusual in India; and

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

(vii) As regards the presence of graves, the map annexed to the plaint of 1885

shows that there are no graves in front of the western face of the mosque.

The Hadees indicates that one should not offer namaz facing a grave; and

(viii) In any case what is or is not permissible in relation to graves is heavily

disputed with sufis and wahabis being on extreme ends of the spectrum.

Finally, Mr Pasha argued that the concept of ‗Makruh‘ means something which is

undesirable but not prohibited; this is a purely spiritual idea about what makes

worship dearer to Almighty Allah.

Mr Pasha, while controverting the interpretation placed by Mr Mishra has

indicated that Mr Mishra has selectively relied upon certain aspects of the

Hadees without reading the religious texts in their context and as a whole.

74. Justice Sudhir Agarwal observed that Babur, as the Emperor, had absolute

power as an independent sovereign:

―3389…The position of Babar, in our view, was that of

independent sovereign, Sole Monarch, having paramount
power. It was supreme, uncontrollable and absolute, not
answerable to anyone. Whether invader or anything else, the
fact remains that he had been the supreme authority in the
territory which he conquered. Nobody could have questioned
him.‖

The judge observed that ―Whether the building in dispute is a mosque, treated

to be a mosque, believed to be a mosque and practiced as a mosque‖ have to be

decided not in terms of the tenets of the Shariat but according to how people

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believed and conducted themselves over a length of time. The High Court held

that whether Muslims had used the mosque for offering worship immediately after

its construction had not been proved either way but there was evidence to

indicate that Muslims had visited the mosque in order to offer namaz after the

partition wall was set up in 1856-57. Whether namaz was offered was not proved

but it had been established that since 1857 until the last namaz was offered in the

inner courtyard on 16 December 1949, Muslims had visited the mosque for

worship. Hence, whether the building could be a mosque in accordance with the

tenets of the Shariat was of no significance since the conduct of those who

believed and worshipped would be the determinative factor for determining the

nature and use of the property in question. The authority of Babur or Aurangzeb

(whoever constructed the mosque) was absolute and the court could not examine

whether the mosque had been constructed in accordance with or contrary to the

tenets of the Shariat:

―3404…Whether Babar or Aurangzeb or anybody else, they

were supreme authority. Whether their action was consistent
with the tenets of Islam or not, in our view, is unchallengeable
after so many centuries particularly when those supreme
authorities were not subordinate to any system of justice.
Even otherwise, we cannot examine as to whether they rightly
or wrongly constructed a place terming it as mosque
particularly when at least the local people believe from the
representation, whatever it is, that the construction which has
been made, is that of a mosque.‖

In the view of Justice Sudhir Agarwal:

―3405. Something which took place more than 200 and odd
years, we are clearly of the view, cannot be a subject matter
of judicial scrutiny of this Court which is the creation of statute
that came into force in a system which itself was born after
more than hundred and odd years when the building in
dispute might have been constructed. All the expert religious
witnesses have admitted that if a mosque is constructed, the

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picture or images of living beings like human images or

animal images shall not be allowed to remain thereat. The
creator of the building in dispute thought otherwise, yet the
followers of Islam did not hesitate in using the premises for
the purpose of Namaz. Whether the belief of such persons,
who visited the premises for such worship, is superior or
inferior, whether such offering of Namaz was regular or
frequent or occasional and intermittent would be of no
consequence. Suffice, if there had been Namaz by the
Muslim. The offering of worship by Hindus knowing the
building in dispute that it is a mosque is something else but on
that basis the manner in which the building in dispute has
been known for the last more than 250 years and odd cannot
be changed.‖

The offering of prayer by Muslims though intermittently from 1860 uptill 16

December 1949 was in the view of the High Court a matter of significance.

75. Assailing the above view, it has been urged by Mr Mishra that the

observations of the High Court are per incuriam and that in terms of Section 3 of

the Oudh Laws Act 1876, decisions on matters of religious use or institutions

have to be decided according to Islamic law or, as the case may be, according to

Hindu law.

76. Essentially, the submissions which have been urged before this Court

require it to embark upon a journey into theological doctrine and to apply the

doctrine to deduce whether every one of the features prescribed by the Hadees

for the location or construction of a mosque have been fulfilled.

77. During the course of the submissions, it has emerged that the extreme and

even absolute view of Islam sought to be portrayed by Mr P N Mishra does not

emerge as the only available interpretation of Islamic law on a matter of theology.

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Hence, in the given set of facts and circumstances, it is inappropriate for this

Court to enter upon an area of theology and to assume the role of an interpreter

of the Hadees. The true test is whether those who believe and worship have faith

in the religious efficacy of the place where they pray. The belief and faith of the

worshipper in offering namaz at a place which is for the worshipper a mosque

cannot be challenged. It would be preposterous for this Court to question it on the

ground that a true Muslim would not offer prayer in a place which does not meet

an extreme interpretation of doctrine selectively advanced by Mr Mishra. This

Court, as a secular institution, set up under a constitutional regime must steer

clear from choosing one among many possible interpretations of theological

doctrine and must defer to the safer course of accepting the faith and belief of the

worshipper.

Above all, the practice of religion, Islam being no exception, varies according to

the culture and social context. That indeed is the strength of our plural society.

Cultural assimilation is a significant factor which shapes the manner in which

religion is practiced. In the plural diversity of religious beliefs as they are

practiced in India, cultural assimilation cannot be construed as a feature

destructive of religious doctrine. On the contrary, this process strengthens and

reinforces the true character of a country which has been able to preserve its

unity by accommodating, tolerating and respecting a diversity of religious faiths

and ideas. There can be no hesitation in rejecting the submission made by Mr

Mishra. Our Court is founded on and owes its existence to a constitutional order.

We must firmly reject any attempt to lead the court to interpret religious doctrine

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in an absolute and extreme form and question the faith of worshippers. Nothing

would be as destructive of the values underlying Article 25 of the Constitution.

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PART I

I. Places of Worship Act

78. Parliament enacted the Places of Worship (Special Provisions) Act 1991 30.

Sections 3, 6 and 8 of the legislation came into force at once on the date of

enactment (18 September 1991) while the other provisions are deemed to

have come into force on 11 July 1991. The long title evinces the intent of

Parliament in enacting the law, for it is:

―An Act to prohibit conversion of any place of worship and to

provide for the maintenance of the religious character of any
place of worship as it existed on the 15th day of August, 1947,
and for matters connected therewith or incidental thereto.‖

The law has been enacted to fulfil two purposes. First, it prohibits the conversion

of any place of worship. In doing so, it speaks to the future by mandating that the

character of a place of public worship shall not be altered. Second, the law seeks

to impose a positive obligation to maintain the religious character of every place

of worship as it existed on 15 August 1947 when India achieved independence

from colonial rule.

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

―2(c) ―place of worship‖ means a temple, mosque,

gurudwara, church, monastery or any other place of public
religious worship of any religious denomination or any section
thereof, by whatever name called.‖

In Section 2(a), the Places of Worship Act provides that the ―commencement of

this Act‖ means the commencement on 11 July 1991.

30 ―Places of Worship Act‖

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Section 3 enacts a bar on the conversion of a place of worship of any religious

denomination or a section of it into a place of worship of a different religious

denomination or of a different segment of the same religious denomination:

―3. Bar of conversion of places of worship.—No person

shall convert any place of worship of any religious
denomination or any section thereof into a place of worship
of a different section of the same religious denomination or of
a different religious denomination or any section thereof.‖

Section 4 preserves the religious character of a place of worship as it existed on

15 August 1947:

―4. Declaration as to the religious character of certain places

of worship and bar of jurisdiction of courts, etc.—(1) It is
hereby declared that the religious character of a place of
worship existing on the 15th day of August, 1947 shall
continue to be the same as it existed on that day.
(2) If, on the commencement of this Act, any suit, appeal
or other proceeding with respect to the conversion of the
religious character of any place of worship, existing on the
15th day of August, 1947, is pending before any court,
tribunal or other authority, the same shall abate, and no suit,
appeal or other proceeding with respect to any such matter shall
lie on or after such commencement in any court, tribunal or other
authority:
Provided that if any suit, appeal or other proceeding,
instituted or filed on the ground that conversion has
taken place in the religious character of any such place
after the 15th day of August, 1947, is pending on the
commencement of this Act, such suit, appeal or other
proceeding shall not so abate and every such suit, appeal
or other proceeding shall be disposed of in accordance with
the provisions of sub-section (1).
(3) Nothing contained in sub-section (1) and sub-section (2)
shall apply to,—
(a) any place of worship referred to in the said sub-
sections which is an ancient and historical monument or an
archaeological site or remains covered by the Ancient
Monuments and Archaeological Sites and Remains Act, 1958
(24 of 1958) or any other law for the time being in force;
(b) any suit, appeal or other proceeding, with respect to
any matter referred to in sub-section (2), finally decided,
settled or disposed of by a court, tribunal or other authority
before the commencement of this Act;
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(c) any dispute with respect to any such matter settled by

the parties amongst themselves before such commencement;
(d) any conversion of any such place effected before such
commencement by acquiescence;
(e) any conversion of any such place effected before such
commencement which is not liable to be challenged in any
court, tribunal or other authority being barred by limitation
under any law for the time being in force.‖
(Emphasis supplied)

The Places of Worship Act however contains an exemption from the application

of its provisions to the place of worship ―commonly known as Ram Janam

Bhumi

–Babri Masjid‖ and to any suit, appeal or proceeding relating to it. Section 5

stipulates:

―5. Act not to apply to Ram Janma Bhumi-Babri Masjid.—

Nothing contained in this Act shall apply to the place or place
of worship commonly known as Ram Janma Bhumi-Babri
Masjid situated in Ayodhya in the State of Uttar Pradesh and
to any suit, appeal or other proceeding relating to the said
place or place of worship.‖

Section 6 provides for a punishment of three years‘ imprisonment and a fine for

contravening the provisions of Section 3 and for an attempt or act of abetment:

―6. Punishment for contravention of section 3.—(1) Whoever

contravenes the provisions of section 3 shall be punishable
with imprisonment for a term which may extend to three years
and shall also be liable to fine.
(2) Whoever attempts to commit any offence punishable
under sub-section (1) or to cause such offence to be
committed and in such attempt does any act towards the
commission of the offence shall be punishable with the
punishment provided for the offence.
(3) Whoever abets, or is a party to a criminal conspiracy
to commit, an offence punishable under sub-section (1) shall,
whether such offence be or be not committed in consequence
of such abetment or in pursuance of such criminal conspiracy,
and notwithstanding anything contained in section 116 of the
Indian Penal Code, be punishable with the punishment
provided for the offence.‖

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Section 7 confers upon the Places of Worship Act overriding force and effect:

―7. Act to override other enactments.—The provisions of this

Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in
force or any instrument having effect by virtue of any law
other than this Act.‖

80. The law imposes two unwavering and mandatory norms:

(i) A bar is imposed by Section 3 on the conversion of a place of worship of

any religious denomination or a section of a denomination into a place of

worship either of a different section of the same religious denomination or

of a distinct religious denomination. The expression ‗place of worship‘ is

defined in the broadest possible terms to cover places of public religious

worship of all religions and denominations; and

(ii) The law preserves the religious character of every place of worship as it

existed on 15 August 1947. Towards achieving this purpose, it provides for

the abatement of suits and legal proceedings with respect to the

conversion of the religious character of any place of worship existing on 15

August 1947. Coupled with this, the Places of Worship Act imposes a bar

on the institution of fresh suits or legal proceedings. The only exception is

in the case of suits, appeals or proceedings pending at the

commencement of the law on the ground that conversion of a place of

worship had taken place after 15 August 1947. The proviso to sub-section

(2) of Section 4 saves those suits, appeals and legal proceedings which

are pending on the date of the commencement of the Act if they pertain to

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the conversion of the religious character of a place of worship after the

cutoff date. Sub-Section (3) of Section 4 however stipulates that the

previous two sub-sections will not apply to:

(a) Ancient and historical monuments or archaeological sites or

remains governed by Act 24 of 1958 or any other law;

(b) A suit or legal proceeding which has been finally decided

settled or disposed of;

(c) Any dispute which has been settled by the parties before the

commencement of the Act;

(d) A conversion of a place of worship effected before the

commencement of the Act by acquiescence; and

(e) Any conversion of a place of worship before the

commencement of the Act in respect of which the cause of

action would be barred by limitation.

Section 5 stipulates that the Act shall not apply to Ram Janmabhumi – Babri

Masjid and to any suit, appeal or any proceeding relating to it. Consequently,

there is a specific exception which has been carved out by the provisions of the

Places of Worship Act in respect of the present dispute.

The intention of Parliament

81. The purpose of enacting the law was explained by the Union Minister of

Home Affairs on the floor of the Lok Sabha on 10 September 199131:

31 Lok Sabha Debates, Volume V, nos 41-49, page 448

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―We see this Bill as a measure to provide and develop our

glorious traditions of love, peace and harmony. These
traditions are part of a cultural heritage of which every Indian is
justifiably proud. Tolerance for all faiths
has characterized our great civilization since
time immemorial.
These traditions of amity, harmony and mutual respect came
under severe strain during the pre-independence period when
the colonial power sought to actively create and encourage
communal divide in the country. After independence we
have set about healing the wounds of the past and
endeavoured to restore our traditions of communal amity and
goodwill to their past glory. By and large we have succeeded,
although there have been, it must be admitted, some
unfortunate setbacks. Rather than being discouraged by
such setbacks, it is our duty and commitment to taken
lesson from them for the future.‖
(Emphasis
supplied)

The Union Minister of Home Affairs indicated that the law which sought to prohibit

the forcible conversion of places of worship was not ―to create new disputes and

to rake up old controversies which had long been forgotten by the people…but

facilitate the object sought to be achieved‖32. Speaking in support of the cut-off

date of 15 August 1947, one of the Members (Shrimati Malini Bhattacharya)

explained33:

―But I think this August 15, 1947 is crucial because on that

date we are supposed to have emerged as a modern,
democratic and sovereign State thrusting back such
barbarity into the past once and for all. From that date, we
also distinguished ourselves…as State which has no official
religion and which gives equal rights to all the different
religious denominations. So, whatever may have happened
before that, we all expected that from that date there should
be no such retrogression into the past.‖
(Emphasis supplied)

32 Lok Sabha Debates, Volume V, nos 41-49, page 448

33 Lok Sabha Debates, Volume V, nos 41-49, pages 443-444

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82. The Places of Worship Act which was enacted in 1991 by Parliament protects

and secures the fundamental values of the Constitution. The Preamble

underlines the need to protect the liberty of thought, expression, belief, faith and

worship. It emphasises human dignity and fraternity. Tolerance, respect for and

acceptance of the equality of all religious faiths is a fundamental precept of

fraternity. This was specifically adverted to by the Union Minister of Home Affairs

in the course of his address before the Rajya Sabha 34 on 12 September 1991 by

stating:

―I believe that India is known for its civilization and the

greatest contribution of India to the world civilization is the
kind of tolerance, understanding, the kind of assimilative spirit
and the cosmopolitan outlook that it shows…
The Advaita philosophy…clearly says that there is no
difference between God and ourselves. We have to realize
that God is not in the mosque or in the temple only, but God
is in the heart of a person…
Let everybody understand that he owes his allegiance to the
Constitution, allegiance to the unity of the country: the rest of
the things are immaterial.‖

In providing a guarantee for the preservation of the religious character of places

of public worship as they existed on 15 August 1947 and against the conversion

of places of public worship, Parliament determined that independence from

colonial rule furnishes a constitutional basis for healing the injustices of the past

by providing the confidence to every religious community that their places of

worship will be preserved and that their character will not be altered. The law

addresses itself to the State as much as to every citizen of the nation. Its norms

bind those who govern the affairs of the nation at every level. Those norms

implement the Fundamental Duties under Article 51A and are hence positive

34 Rajya Sabha Debates, Volume CLX, nos 13-18, pages 519-520 and 522

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mandates to every citizen as well. The State, has by enacting the law, enforced a

constitutional commitment and operationalized its constitutional obligations to

uphold the equality of all religions and secularism which is a part of the basic

features of the Constitution. The Places of Worship Act imposes a non-derogable

obligation towards enforcing our commitment to secularism under the Indian

Constitution. The law is hence a legislative instrument designed to protect the

secular features of the Indian polity, which is one of the basic features of the

Constitution. Non-retrogression is a foundational feature of the fundamental

constitutional principles of which secularism is a core component. The Places of

Worship Act is thus a legislative intervention which preserves non-retrogression

as an essential feature of our secular values.

Secularism as a constitutional value

83. In a nine judge Bench decision of this Court in S R Bommai v Union of

India35, Justice B P Jeevan Reddy held:

―304…How are the constitutional promises of social justice,

liberty of belief, faith or worship and equality of status and of
opportunity to be attained unless the State eschews the
religion, faith or belief of a person from its consideration
altogether while dealing with him, his rights, his duties and his
entitlements? Secularism is thus more than a passive attitude
of religious tolerance. It is a positive concept of equal
treatment of all religions. This attitude is described by some
as one of neutrality towards religion or as one of benevolent
neutrality. This may be a concept evolved by western liberal
thought or it may be, as some say, an abiding faith with the
Indian people at all points of time. That is not material. What
is material is that it is a constitutional goal and a basic feature
of the Constitution as affirmed in Kesavananda Bharati
[Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 :
35 (1994) 3 SCC 1

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PART I

1973 Supp SCR 1] and Indira N. Gandhi v. Raj Narain [1975

Supp SCC 1 : (1976) 2 SCR 347] . Any step inconsistent with
this constitutional policy is, in plain words, unconstitutional.‖

The Places of Worship Act is intrinsically related to the obligations of a secular

state. It reflects the commitment of India to the equality of all religions. Above all,

the Places of Worship Act is an affirmation of the solemn duty which was cast

upon the State to preserve and protect the equality of all faiths as an essential

constitutional value, a norm which has the status of being a basic feature of the

Constitution. There is a purpose underlying the enactment of the Places of

Worship Act. The law speaks to our history and to the future of the nation.

Cognizant as we are of our history and of the need for the nation to confront it,

Independence was a watershed moment to heal the wounds of the past.

Historical wrongs cannot be remedied by the people taking the law in their own

hands. In preserving the character of places of public worship, Parliament has

mandated in no uncertain terms that history and its wrongs shall not be used as

instruments to oppress the present and the future.

84. The observations made on the Places of Worship Act by Justice D V Sharma

are contrary to the scheme of the law as they are to the framework of

constitutional values. Justice D V Sharma observed as follows:

―1 (c). Section 9 is very wide. In absence of any

ecclesiastical Courts any religious dispute is cognizable,
except in very rare cases where the declaration sought may
be what constitutes religious rite. Places of Worship (Special
Provisions) Act, 1991 does not debar those cases where
declaration is sought for a period prior to the Act came into
force or for enforcement of right which was recognized
before coming into force of the
Act.‖

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The above conclusion of Justice D V Sharma is directly contrary to the provisions

of Section 4(2). Justice D V Sharma postulates in the above observations that the

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

entertained namely:

(i) Where a declaration is sought for a period prior to the enforcement of the

Places of Worship Act; or

(ii) Where enforcement is sought of a right which was recognised before the

enforcement of the Places of Worship Act.

85. Section 4(1) clearly stipulates that the religious character of a place of

worship as it existed on 15 August 1947 shall be maintained as it existed on that

day. Section 4(2) specifically contemplates that all suits, appeals and legal

proceedings existing on the day of the commencement of the Places of Worship

Act, with respect to the conversion of the religious character of a place of

worship, existing on 15 August 1947, pending before any court, tribunal or

authority shall abate, and no suit, appeal or proceeding with respect to such

matter shall lie after the commencement of the Act. The only exception in the

proviso to sub-section (2) is where a suit, appeal or proceeding is instituted on

the ground that the conversion of the religious character of a place of worship

had taken place after 15 August 1947 and such an action was pending at the

commencement of the Places of Worship Act. Clearly, in the face of the statutory

mandate, the exception which has been carved out by Justice D V Sharma runs

contrary to the terms of the legislation and is therefore erroneous.

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PART J

J. Juristic Personality

J.1 Development of the law

86. At the heart of the legal dispute in the present batch of appeals is the

question whether the first and second plaintiff in Suit 5 - ―Bhagwan Sri Ram

Virajman‖ and ―Asthan Sri Ram Janam Bhumi, Ayodhya‖, possess distinct legal

personalities or, in other words, are ―juristic persons‖. Courts in India have held

that Hindu idols are legal persons. The meaning and significance of this doctrine

will be examined over the course of this judgement. At this juncture it is

necessary to note that the legal personality of the first plaintiff in Suit 5

(‗Bhagwan Sri Ram Virajman‘) as represented by the physical idols of Lord Ram

at the disputed site is not contested by any of the parties. Whether the second

plaintiff

(‗Asthan Sri Ram Janam Bhumi‘) is a juristic person has however been the

subject of controversy in the oral proceedings before us.

87. The present case requires us to answer two important questions: First,

what are the exact contours of the legal personality ascribed to a Hindu idol? In

other words, to what extent is the artificial legal personality ascribed by courts to

a Hindu idol akin to the legal personality of a natural person? Second, can

property of a corporeal nature (in this case land) be ascribed a distinct legal

personality? To answer these questions, it is necessary to understand both the

true purpose underlying the legal innovation of recognising or conferring legal

personality and why courts have conferred legal personality on Hindu idols.

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The legal subject: recognising rights, entitlements, duties and liabilities

88. The foundational principle of a legal system is that it must recognise the

subjects it seeks to govern. This is done by the law recognising distinct legal

units or ‗legal persons‘. To be a legal person is to be recognised by the law as a

subject which embodies rights, entitlements, liabilities and duties. The law may

directly regulate the behaviour of legal persons and their behaviour in relation to

each other. Therefore, to be a legal person is to possess certain rights and duties

under the law and to be capable of engaging in legally enforceable relationships

with other legal persons. Who or what is a legal person is a function of the legal

system. The ability to create or recognise legal persons has always varied

depending upon historic circumstances. The power of legal systems to recognise

and hence also to deny legal personality has been used over history to wreak

fundamental breaches of human rights. Roscoe Pound alludes to this in the

following passage in ―Jurisprudence‖:

―In civilised lands even in the modern world it has happened

that all human beings were not legal persons. In Roman law
down to the constitution of Antonius Pius the slave was not a
person. He enjoyed neither rights of family nor rights of
patrimony. He was a thing, and as such like animals, could
be the object of rights of property. … In French colonies,
before slavery was there abolished, slaves were put in the
class of legal persons by the statute of April 23, 1833 and
obtained a ‗somewhat extended juridical capacity‘ by a
statute of 1845. In the United States down to the Civil War,
the free Negroes in many of the States were free human
beings with no legal rights.‖36

36 Roscoe Pound, Jurisprudence, Part IV, 1959 Edition

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Pound‘s observations were extracted by this Court in Shiromani Gurdwara

Prabandhak Committee, Amritsar v Som Nath Dass37 where a two judge

Bench of this Court had to determine whether the ―Guru Granth Sahib‖

possessed a legal personality. While discussing ‗who is a legal person‘ Justice A

P Misra observed:

―11. …If we trace the history of a ―person‖ in the various

countries we find surprisingly it has projected differently at
different times.
…
13. With the development of society, where an individual‘s
interaction fell short, … cooperation of a larger circle of
individuals was necessitated. Thus, institutions
like corporations and companies were created, to help the
society in achieving the desired result. The very constitution of
a State, municipal corporation, company etc. are all creations
of the law and these ―juristic persons‖ arose out of
necessities in the human development. In other words, they
were dressed in a cloak to be recognised in law to be a legal
unit.‖

89. Legal systems across the world evolved from periods of darkness where legal

personality was denied to natural persons to the present day where in

constitutional democracies almost all natural persons are also legal persons in

the eyes of the law. Legal systems have also extended the concept of legal

personality beyond natural persons. This has taken place through the creation of

the ‗artificial legal person‘ or ‗juristic person‘, where an object or thing which is

not a natural person is nonetheless recognised as a legal person in the law. Two

examples of this paradigm are, where a collection of natural persons is

collectively conferred a distinct legal personality (in the case of a cooperative

society or corporation) and where legal personality is conferred on an inanimate

37 (2000) 4 SCC 146

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object (in the case of a ship). The conferral of legal personality on things other

than natural persons is a legal development which is so well recognised that it

receives little exposition by courts today. The legal development is nonetheless

well documented. Salmond in his work titled ―Jurisprudence‖ notes:

―Conversely there are, in the law, persons who are not men.
A joint-stock company or a municipal corporation is a person
in legal contemplation. It is true that it is only a fictitious, not a
real person; but it is not a fictitious man. It is personality, not
human nature, that is fictitiously attributed by the law to
bodies corporate.

So far as legal theory is concerned, a person is any being

whom the law regards as capable of rights and duties. Any
being that is so capable is a person, whether a human being
or not, and no being that is not so capable is a person, even
though he be a man. Persons are the substance of which
rights and duties are the attributes. It is only in this
respect that persons possess juridical significance, and
this is the exclusive point of view from which personality
receives legal recognition.

But we may go one step further than this in the analysis. No

being is capable of rights, unless also capable of
interests which may be affected by the acts of others.
For every right involves an underlying interest of this nature.
Similarly no being is capable of duties, unless also capable of
acts by which the interests of others may be affected. To
attribute rights and duties, therefore, is to attribute interests
and acts as their necessary bases. A person, then, may be
defined for the purposes of the law, as any being to
whom the law attributes a capability of interests and
therefore of rights, of acts and therefore of duties.‖38
(Emphasis supplied)

90. A legal person possesses a capability to bear interests, rights and duties.

Salmond makes a crucial distinction between legal personality and the physical

corpus on which legal personality is conferred:

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

personifying some real thing. Such a person has to this extent
a real existence, and it is his personality alone that is fictitious.

38 J W Salmond, Jurisprudence, Steven and Haynes (1913)

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There is, indeed, no theoretical necessity for this, since the

law might, if it so pleased, attribute the quality of
personality to a purely imaginary being, and yet attain the
ends for which this fictitious extension of personality is
devised. Personification, however, conduces so greatly to
simplicity of thought and speech, that its aid is invariably
accepted. The thing personified may be termed the
corpus of the legal person so created; it is the body into
which the law infuses the animus of a fictitious
personality.
…
Legal persons, being the arbitrary creations of the law, may
be as of as many kinds as the law pleases. Those which are
actually recognised by our own system, however, all fall
within a single class, namely corporations or bodies
corporate. A corporation is a group or series of persons which
by a legal fiction is regarded and treated as itself a person. If,
however, we take account of other systems of our own,
we find that the conception of legal personality is not so
limited in its application…‖39
(Emphasis supplied)

Legal personality is not human nature. Legal personality constitutes recognition

by the law of an object or corpus as an embodiment of certain rights and duties.

Rights and duties which are ordinarily conferred on natural persons are in select

situations, conferred on inanimate objects or collectives, leading to the creation of

an artificial legal person. An artificial legal person is a legal person to the extent

the law recognises the rights and duties ascribed to them, whether by statute or

by judicial interpretation. Salmond presciently notes that the rights and duties

conferred on artificial legal persons ultimately represent the interests and benefits

of natural persons. In fact, it is precisely because of the substantial benefits

derived by natural persons from such objects or collectives that legislators and

courts are called upon to consider conferring legal personality on such objects or

collectives.

39 J.W. Salmond, Jurisprudence, Steven and Haynes (1913)

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91. At a purely theoretical level, there is no restriction on what legal personality

may be conferred. What is of significance is the purpose sought to be achieved

by conferring legal personality. To the extent that this purpose is achieved, legal

personality may even be conferred on an abstract idea. However, Salmond

notes that legal personality is usually conferred on objects which are already the

subject of personification or anthropomorphisms in layman‘s language out of

―simplicity for thought and speech‖. The question whether legal personality is

conferred on a ship, idol, or tree is a matter of what is legally expedient and the

object chosen does not determine the character of the legal personality

conferred. The character of the legal personality conferred is determined by the

purpose sought to be achieved by conferring legal personality. There is thus a

distinction between legal personality and the physical corpus which then comes

to represent the legal personality. By the act of conferring legal personality, the

corpus is animated in law as embodying a distinct legal person possessing

certain rights and duties.

92. By conferring legal personality, legal systems have expanded the definition

of a ‗legal person‘ beyond natural persons. Juristic persons so created do not

possess human nature. But their legal personality consists of the rights and

duties ascribed to them by statute or by the courts to achieve the purpose sought

to be achieved by the conferral of such personality. It is important to understand

the circumstances in which legal personality has been conferred and

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consequently the rights and duties ascribed to the inanimate objects on which

this conferment takes place.

The Corporation

93. The most widely recognised artificial legal person is the corporation in

Company law. However, for the purposes of understanding the circumstances

under which courts have conferred legal personality, the example of the

corporation is of limited use. The idea of treating a collective of individuals as a

single unit for the purposes of identification in law is as old as human civilisation

itself. There exists a plethora of examples of such recognition scattered across

human history with the advent of guilds, partnerships and early unincorporated

businesses. As Phillip Blumberg notes in his book titled ―The Multinational

Challenge to Corporation Law‖:

―When the Crown finally began to charter craft guilds and

trading companies - the first business corporations - in the
fifteenth century, an understanding of the legal nature of
the corporation was already substantially in place. ...
With this history before them, Sir Edward Code, writing in the
beginning of the seventeenth century; ... and Blackstone and
Kyd, writing in the late eighteenth century, could confidently
assert what the corporation was, how it was created, and
what legal attributes flowed from its organization. While they
had primarily ecclesiastical and municipal corporations in
mind, their commentary fully applied to business corporations
as well.‖40
(Emphasis supplied)

The jurisprudential concept of treating a collective of entrepreneurs as a single

unit for the purposes of legal recognition was already well established by the time

40 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,
Oxford University Press (1993), at page 3

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the first business corporations came into existence and did not warrant

examination by the courts. The author further states:

―Until well into the nineteenth century, recognition of a

corporation for business purposes, both in England and
in the United States, required a specific governmental
decision to grant corporate status. In England, this took the
form of a character from the Crown or an act of
Parliament. In the United States it required a legislative act. ...
With the universal triumph of general incorporation
statutes more than a century ago, corporations could be
formed simply by filing certain forms and paying certain
fees and taxes. The state's role has shrunken dramatically to
a general specification of procedures and a ministerial
administrative acknowledgement of the
incorporators' compliance with statutory formalities.‖41
(Emphasis supplied)

The independent legal personality of a corporation has never been dependent on

recognition by courts. The legal personality of the corporation was originally

granted by a positive act of the government. In later years, as incorporation

became the preferred method of doing business, corporate personality was

conferred by general statutes of incorporation which permitted any person to

incorporate a company subject to the satisfaction of certain statutory conditions.

These historical developments outline the departure from a positive act of the

government as the basis of corporate personality, to the creation of statutory

frameworks within which it was conferred. It does not, however, outline the

reasons underlining the conferral of legal personality and is of little assistance in

the present situation.

The Ship

41 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,
Oxford University Press (1993), at page 22

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94. A more pertinent example for the present purposes is the conferment of legal

personality on a ship. The concepts of a maritime lien and of actions in rem are

established precepts of maritime law. A maritime lien may arise in the case of a

wrongdoing or damage caused by a ship which gives the claimant a charge on

the ‗res‘ of the ship. The charge is crystallised by an ‗action in rem‘ under which

the ship is directly proceeded against, as a legal person. In 1881, Sir George

Jessel MR explained this in The City of Mecca42, where he observed:

―You may in England and in most countries proceed against

the ship. The writ may be issued against the owner of such a
ship, and the owner may never appear, and you get your
judgement against the ship without a single person being
named from beginning to end. That is an action in rem, and it
is perfectly well understood that the judgement is against the
ship.‖

D R Thomas in his book titled ―Maritime Liens‖43 traces the history of the

judicial conferment of legal personality on ships. He speaks of two theories- the

‗personification theory‘ and the ‗procedural theory‘ in explaining the evolution of

the concept:

―The first [theory], commonly coined as the personification

theory, traces the historical origin and development of
maritime liens to the juristic technique, which has obtained
since medieval times, of ascribing personality to a ship. Under
this theory a ship is personified and regarded as a distinct
juristic entity with a capacity to contract and commit torts. The
ship is both the source and limit of liability.
…
The second theory, known as the procedural theory, is based
on the premise that maritime liens evolved out of the process
of arrest of a vessel in order to compel the appearance of the
res owner and to obtain a security.
…
Although the point is not free of uncertainty it is probably the
case that a maritime lien is a substantive right whereas a
42 The City of Mecca (1881) 5 P.D. 106
43 D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980)

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statutory right of action in rem is in essence a procedural

remedy. The object behind the availability of a statutory right
of action in rem is to enable a claimant to found a jurisdiction
and to provide the res as security for the claim.‖47
(Emphasis supplied)

95. There is a direct nexus between the conferral of a limited legal personality

and the adjudicative utility achieved by the conferral. Courts treat the physical

property of the ship as a legal person against which certain actions may be

taken. Conferring legal personality on the ship allows for actions to be taken

independent of the availability or presence of the ship‘s owners, who in a great

many cases may be in other parts of the world. As a ship may only be in port for

a brief period, an action in rem allows the claimant to ensure pre-judgement

security. Thus, even absent an express personification, actions against the ship

as a legal person ensure the effective adjudication of admiralty disputes.

96. In M V Elisabeth v Harwan Investment and Trading Pvt Ltd. 48, this

Court noticed the underlying basis of this principle of Admiralty law. Justice

Thommen, speaking for a two judge Bench traced the exercise of admiralty

jurisdiction by English courts:

―44. …The vital significance and the distinguishing feature

of an admiralty action in rem is that this jurisdiction can be
assumed by the coastal authorities in respect of any maritime
claim by arrest of the ship, irrespective of the nationality of
the ship or that of its owners, or the place of business or
domicile or residence of its owners or the place where the
cause of action arose wholly or in part.‖

―…In admiralty the vessel has a juridical personality, an

almost corporate capacity, having not only rights but
liabilities (sometimes distinct from those of the owner)
which may be enforced by process and the decree
against the vessel, binding upon all interested in her and
conclusive upon the world, for admiralty in appropriate

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47
D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980), at pages 7
and 38
48
1993 Supp (2) SCC 433
cases administers remedies in rem, i.e., against the property,
as well as remedies in personam, i.e., against the party
personally…‖ (Benedict, The Law of American Admiralty, 6th
ed., Vol. I p. 3.)

45. Admiralty Law confers upon the claimant a right in rem to

proceed against the ship or cargo as distinguished from a
right in personam to proceed against the owner. The arrest of
the ship is regarded as a mere procedure to obtain security
to satisfy judgement….‖ (Emphasis supplied)

In this view, the conferral of legal personality on a ship sub-served the purpose of

business certainty and expediency. The decree against the ship binds all

interested in her, and despite her nomadic nature, satisfies the requirement of

ensuring pre-judgment security. Besides the UK and India, the attribution of legal

personality to ships has been used extensively across jurisdictions. Illustrating

the approach of American courts, Professor Douglas Lind traces the evolution of

the concept:

―As the United States entered its first century, the greater
part of the nation's trade and commerce, as well as much of
the general transportation of persons, occurred on the high
seas or along the country‘s abundant inland navigable
waterways. The constitution had extended the federal
judicial power to all cases of admiralty and maritime
jurisdiction.
…
[The Brig James Wells v United States] case raised what was
quickly becoming a common issue: whether an American
registered vessel should be condemned for violating a federal
law. The Court held the Brig's condemnation inevitable.
Noteworthy is the fact that while the case was styled in the
name of the vessel, neither the term 'maritime lien' nor 'in
rem, appears, and there is no suggestion that the ship
itself, rather than those in charge of it, was the offender
… The practice of naming an action against a vessel did
not, however, attest to the idea of vessel personification.
The Court treated actions styled against a vessel as

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including everyone with an interest in her as ―a party to

the suit.‖
…
Numerous cases had troubled the federal courts regarding
enforcement of liens when the principals (owners, masters)
with interests in a ship had no active role or prior knowledge
of the wrongdoing alleged. Traditional law of agency, with
the ship as agent, worked against a coherent rule of
responsibility and recovery … Given the peculiar vitalism
of the ship in lore, literature, and poetry, it took only a slight
conceptual shift in the legal mind for the federal courts to
assume the ―mental mode‖ of adaptation to [the] reality of
the vitalism of the ship. The doctrine gave the courts the
―control of the environment‖ over maritime law that they had
been lacking … with the doctrine of the personality of the
ship, the Supreme Court inverted the relationship of
agency, making the ship the principal rather than the
agent. In this way, the ―desirable consequences‖ of a
coherent, workable admiralty jurisdiction seemed
possible. The doctrine of the personality of the ship, that is,
became a central hallmark of nineteenth century American
admiralty law because it appeared to the Supreme Court ―to
be good in the way of belief‖ … The idea originated in the
practical efforts of the Supreme Court, especially
Justices Marshall and Story, to meet critical social and
political needs of the new American republic.‖44
(Emphasis supplied)

97. The experience of American courts was that owners of offending ships

regularly avoided the jurisdiction of courts. The existing law of the day was

inadequate to address the situation. The judges of the American Supreme

Court therefore utilised the existing non-legal practice of

anthropomorphising the ship and gave it legal significance by conferring

legal personality on vessels within their jurisdiction. Significantly, the

existing law of agency was ill equipped to deal with the unique features of

Admiralty Law. Allowing actions against ships then created a vehicle

through which the obligations of those with an interest in the ships and her

44 Douglas Lind, Pragmatism and Anthropomorphism: Reconceiving the Doctrine of the Personality of the Ship,
22 U.S.F. Mar. L.J. 39 (2009) at page 91

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actions, though outside the jurisdiction of courts, would be fulfilled by the

recognition by the law of the personality of the maritime vessel. Perhaps

even more so than in the case of English admiralty courts, the American

experience demonstrates that the conferral of legal personality on ships

was a result of historical circumstances, shortcomings in the existing law

and the need of courts to practically and effectively adjudicate upon

maritime claims. Over the course of several cases, the American Supreme

Court solved the practical difficulties of attribution and agency by making

the ship a distinct legal person for the purposes of adjudicating maritime

claims.

History, necessity and convenience

98. These observations are true even beyond the realm of admiralty law.

Bryant Smith in a seminal article titled ―Legal Personality‖ published in 1928 in

the Yale Law Journal45 states that ordinarily, the subjects of rights and duties are

natural persons. However, he goes on to note that:

―… for some reason or other, it becomes necessary or

convenient to deal with an inanimate object such as a
ship, or with a human being in a multiple capacity, as a
trustee or a guardian, or with an association of human
beings in a single capacity, as a partnership or a
corporation. A merchant, for example, who has furnished
supplies for a voyage, or a boss stevedore who has renovated
the ship, cannot reach the owner of the vessel, who is outside
the jurisdiction. The obvious solution is to get at the ship itself
and, through it, satisfy the owner's obligations. But to devise
a new system of jurisprudence for the purpose, to work
out new forms and theories and processes, would too
severely tax the ingenuity of the profession. The
alternative is for the judges to shut their eyes to the
irrelevant differences between a ship and a man and to

45 Bryant Smith, Legal Personality, 37 Yale L.J. (1928) at pages 287, 295 and 296

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treat the ship as if it were a man for the purpose of

defending a libel.
…
It is true, of course, that the benefits and burdens of legal
personality in other than human subjects, on ultimate
analysis, result to human beings, which, we have no
doubt, is what the writers above cited mean. But the very
utility of the concept, particularly in the case of corporate
personality, lies in the fact that it avoids the necessity for
this ultimate analysis.
…
But, though the function of legal personality, as the quotation
suggests, is to regulate behaviour, it is not alone to
regulate the conduct of the subject on which it is
conferred; it is to regulate also the conduct of human
beings toward the subject or toward each other. It suits
the purposes of society to make a ship a legal person,
not because the ship's conduct will be any different, of
course, but because its personality is an effective instrument
to control in certain particulars the conduct of its owner or of
other human beings.‖
(Emphasis supplied)

The above extract affirms Salmond‘s observations that the choice of corpus (i.e.

the object) on which legal personality is conferred is not based on strict legal

principle but is an outcome of historical circumstances, legal necessity and

convenience. Historical circumstances require courts to adjudicate upon unique

factual situations. In American admiralty law, the increase in maritime expeditions

coupled with the conferral of admiralty jurisdiction on the United States Supreme

Court led to an influx of cases involving maritime claims. The existing law of the

day did not allow the court to effectively adjudicate upon these new claims,

leading to inequitable, absurd or perverse outcomes. Hence, legal innovation was

resorted to by courts. Both Lind and Smith highlighted several problems arising

from the uniqueness of the ship itself – a vessel travelling across multiple

jurisdictions, whose owners may reside in jurisdictions other than those where

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they are sought to be acted against and have little knowledge of, or control, over

the operation of the ship. The conferral of legal personality on the ship did not

change the behaviour of the ship. It however created a legal framework within

which the interactions between natural persons and the ship could be regulated

to achieve outcomes at a societal level which are satisfactory and legally sound.

99. Both authors note that the existing personification of the ship required

courts to make but a small conceptual leap of faith, which resulted in

significant legal benefits for courts. This point is of greater historical than

legal significance for it cannot be stated that where there is no

personification of an object, a court is barred from conferring legal

personality. Arguably, the independent legal personality conferred on a

corporation by acts of the state involved a far greater conceptual leap. Yet

it was deemed necessary and has since crystallised into a foundational

principle in the law of corporations.

100. There exists another reason to confer legal personality. Objects represent

certain interests and confer certain benefits. In the case of some objects,

the benefits will be material. The benefit may extend beyond that which is

purely material. An artificial legal person, whether a ship or a company

cannot in fact enjoy these benefits. The ultimate beneficiaries of such

benefits are natural persons. However, requiring a court, in every case, to

make the distinction between the artificial legal person and the natural

persons deriving benefit from such artificial person is inordinately taxing,

particularly when coupled with the increasing use of corporations and

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ships. This leads us to the third rationale for conferring legal personality -

convenience. The conferral of legal personality on objects has historically

been a powerful tool of policy to ensure the practical adjudication of claims.

By creating a legal framework, it equipped the court with the tools

necessary to adjudicate upon an emerging class of disputes. It saved

considerable judicial effort and time by allowing judges to obviate the

distinction between artificial and natural persons where it was not relevant.

The conferral of legal personality was thus a tool of legal necessity and

convenience. Legal personality does not denote human nature or human

attributes. Legal personality is a recognition of certain rights and duties in

law. An object, even after the conferral of legal personality, cannot express

any will but it represents certain interests, rights, or benefits accruing to

natural persons. Courts confer legal personality to overcome shortcomings

perceived in the law and to facilitate practical adjudication. By ascribing

rights and duties to artificial legal persons (imbued with a legal

personality), the law tackles and fulfils both necessity and convenience. By

extension, courts ascribe legal personality to effectively adjudicate upon

the claims of natural persons deriving benefits from or affected by the

corpus upon which legal personality is conferred. The corollary of this

principle is that the rights ascribed by courts to the corpus are limited to

those necessary to address the existing shortcomings in the law and

efficiently adjudicate claims.

101. This principle is concisely articulated by Phillip Blumberg:

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―Distinguished by their particular legal

rights and responsibilities, each class of legal unit is unique.
They include legal subjects as disparate as individuals,
maritime vessels, physical objects, partnerships, associations,
special accounts, funds, economic interest
groupings, and governmental agencies, as well as the
corporation and the corporate group. In each case, the
attribution of rights and responsibilities demarcating the
perimeters of legal recognition of the unit reflects all the
factors that underlie societal lawmaking: the historical
development of the law, changing values and interests,
socio-economic and political forces, and conceptual currents.

There are certain fundamental points. First, neither legal

rights nor legal units exist ―in the air‖. Legal rights must
pertain to a legal unit that can exercise them. Further, there
can be no comprehensive list of legal rights and
responsibilities that automatically springs into existence
upon recognition of a particular subject as a legal unit.
Quite the contrary. It is the recognition of particular rights
and responsibilities (principally rights) – one by one –
that shapes the juridical contours of the legal unit for
which they have been created.

When the law recognises a particular right or imposes a

particular responsibility on a presumptive legal unit, this
constitutes recognition as a legal unit to the extent of the
attribution. Other rights and responsibilities may or may
not exist, depending on whether such recognition of the
unit in the view of the lawmaker – whether legislator,
administrator, or judge – will fulfil the underlying policies
and objectives of the law of the time in the area. Further,
as society changes, the concept of legal identity and the legal
consequences attributed to them inevitably change as well.‖46
(Emphasis supplied)

All legal units are not alike. The conferral of legal personality sub-serves specific

requirements that justify its recognition. The conferral of juristic personality does

not automatically grant an ensemble of legal rights. The contours of juristic

personality i.e. the rights and liabilities that attach upon the object conferred with

juristic personality, must be determined keeping in mind the specific reasons for

which such legal personality was conferred. The limits or boundaries of the rights

46 Phillip Blumberg, The Multinational Challenge to Corporation Law (Oxford University Press 1993), at page 207

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ascribed to the new legal person must be guided by the reasons for conferring

legal personality. The parameters of judicial innovation are set by the purpose for

which the judge innovates. An example of this is when courts lift the veil of

corporate personality where the conferral of an independent legal personality no

longer serves the above goals. The application of the doctrine is defined by its

ability to serve the object underlying its creation. The legal innovation will become

unruly if courts were to confer legal personality on an object and subsequently

enlarge the object‘s rights to the point where the original goal of intelligible and

practical adjudication is defeated. With this understanding, it is necessary to now

turn to the application of these principles with respect to Hindu idols.

The Hindu idol and divinity

102. At the outset, it is important to understand that the conferral of legal

personality on a Hindu idol is not the conferral of legal personality on divinity

itself, which in Hinduism is often understood as the ‗Supreme Being‘. The

Supreme Being defies form and shape, yet its presence is universal. In the law of

Hindu endowments and in the present proceedings, it has often been stated that

legal personality is conferred on the ‗purpose behind the idol‘. The present

judgment shall advert to the exact legal significance of this statement. For the

present, it is sufficient to note that legal personality is not conferred on the

‗Supreme Being‘ itself. As observed by this Court in Ram Jankijee Deities v

State of Bihar47:

47 (1999) 5 SCC 50

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―19. God is omnipotent and omniscient and its presence is

felt not by reason of a particular form or image but by reason
of a particular form or image but by reason of the presence of
the omnipotent. It is formless, it is shapeless and it is for
the benefit of the worshippers that there is a
manifestation in the images of the supreme being. The
supreme being has no attribute, which consists of pure spirit
and which is without a second being i.e. God is the only
being existing in reality, there is no other being in real
existence excepting Him.‖
(Emphasis
supplied)

103. In 1991, the English Court of Appeal in Bumper Development Corporation

Ltd v Commissioner of Police of the Metropolis48 was called to decide the

question whether a Hindu temple and a Hindu idol could sue in a court of law. In

1976, an Indian labourer discovered a ‗Siva Natraja‘ in Pathur, Tamil

Nadu which the labourer subsequently sold to a dealer in religious artefacts.

Other artefacts were subsequently found, including a ‗Sivalingam‘, and were

reinstated in the Pathur temple. In 1982, Bumper Development Corporation

purchased the ‗Siva Natraja‘ in good faith from a dealer in London who produced

a false provenance of the Natraja for the purposes of the sale. The Natraja was

subsequently seized by the Metropolitan Police. At trial, the Government of India

and the state government of Tamil Nadu intervened, along with the Pathur

Temple and the Sivalingam as ―juristic persons‖. The Court of Appeal engaged

in a lengthy discussion on foreign law in English Courts. However, in evaluating

the maintainability of the claim by the Pathur temple as a legal entity, the English

court made the following observations:

―(1) Neither God nor any supernatural being can be a

person in law. A practical illustration of the truth of this

48 [1991] 1 WLR 1362 (2)

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statement is that if the endowments were to vest in God as a

supernatural being litigation between different temples over
their respective rights would be impossible. In any event the
same ―person‖ would be both plaintiff and defendant since,
as Dr. Mukherjea points out, all Hindus always worship the
one Supreme Being. That there is much litigation between
temples in India is clear beyond a peradventure.
…
(4) Any juristic person must be capable of identification.
This necessitates that ‗person‘ having a name or
description. Since every Hindu idol is a manifestation of one Supreme
Being, one must look elsewhere than to the name of God for an
identification. The Pathur Temple bears the name of its founder in its title;
and that appears to be the custom in Tamil Nadu. So any idol must in
practice be referred to by association with the name of the temple in which it
is.‖ (Emphasis supplied)

104. Hinduism understands the Supreme Being as existing in every aspect of the

universe. The Supreme Being is omnipresent. The idea of a legal person is

premised on the need to ‗identify the subjects‘ of the legal system. An

omnipresent being is incapable of being identified or delineated in any manner

meaningful to the law and no identifiable legal subject would emerge. This

understanding is reflected in the decisions of this Court as well. In Yogendra

Nath Naskar v Commissioner of Income Tax, Calcutta49, a three judge Bench

of this Court was called upon to determine whether a Hindu idol (or ‗deity‘) falls

within the definition of an ―individual‖ under Section 3 of the Income Tax Act

1922. Justice V Ramaswami speaking for a three judge Bench of this Court held:

―Sankara, the great philosopher, refers to the one Reality,

who, owing to the diversity of intellects (Matibheda) is
conventionally spoken of (Parikalpya) in various ways as
Brahma, Visnu and Mahesvara. It is, however, possible
that the founder of the endowment or the worshipper
may not conceive of this highest spiritual plane but hold
that the idol is the very embodiment of a personal God,
but that is not a matter with which the law is concerned.
Neither God nor any supernatural being could be a
person in law. But so far as the deity stands as the
representative and symbol of the particular purpose
49 (1969) 1 SCC 555

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which is indicated by the donor, it can figure as a legal

person. The true legal view is that in that capacity alone the
dedicated property vests in it. There is no principle why a
deity as such a legal person should not be taxed if such a
legal person is allowed in law to own property even though in
the ideal sense and to sue for the property, to realise rent
and to defend such property in a court of law again in the
ideal sense. Our conclusion is that the Hindu idol is a juristic
entity capable of holding property and of being taxed through
its Shebaits who are entrusted with the possession and
management of its property.‖
(Emphasis supplied)

Legal personality is not conferred on the Supreme Being. The Supreme Being

has no physical presence for it is understood to be omnipresent - the very ground

of being itself. The court does not confer legal personality on divinity. Divinity in

Hindu philosophy is seamless, universal and infinite. Divinity pervades every

aspect of the universe. The attributes of divinity defy description and furnish the

fundamental basis for not defining it with reference to boundaries – physical or

legal. For the reason that it is omnipresent it would be impossible to distinguish

where one legal entity ends and the next begins. The narrow confines of the law

are ill suited to engage in such an exercise and it is for this reason, that the law

has steered clear from adopting this approach. In Hinduism, physical

manifestations of the Supreme Being exist in the form of idols to allow

worshippers to experience a shapeless being. The idol is a representation of the

Supreme Being. The idol, by possessing a physical form is identifiable.

105. An exploration of the method adopted for the conferral of legal personality

on Hindu idols and the reason for the conferment is necessary. Chief Justice B K

Mukherjea‘s, ―The Hindu Law of Religious and Charitable Trusts‖

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demonstrates a timeless quality and has significance in understanding the

evolution of our law on the subject. Justice Mukherjea notes that even prior to

courts regulating the Hindu practice of religious endowments, the clear public

interest in regulating properties dedicated for religious purposes, resulted in the

practice being regulated by the rulers of the day. He states:

―1.36 … It appears however that from very early times

religious and charitable institutions in this country came
under the special protection of the ruling authority. In the
celebrated Rameswar Pagoda case, it was pointed out by the
Judicial Committee that the former rulers of this country
always asserted the right to visit endowments of this
kind to prevent and redress the abuses in their
management.
―There can be little doubt‖, thus observed Their Lordships,
―that the superintending authority was exercised by the
older rulers.‖ Mr. Nelson in his Madura Manual says: ―…
The
Dharma Kartas held but little communication one with
another
and recognised no earthly superior except the king himself.
Each was independent of all control and acted altogether
as he pleased. This freedom led naturally to gross abuses
and the king was compelled occasionally to interfere in
the management of some of the churches.‖50
(Emphasis supplied)

106. In an article which was published in 2010 in the Economic and Political

Weekly, Gautam Patel traces the historical evolution of endowments. He noted

the reason for the conferment of personality in law on idols:

―Emperors and rulers routinely donated property and cash

for the establishment, maintenance and upkeep of Hindu
shrines. When land was made over to a temple, it was in the
form of a sanad, or grant, or firman, by edict. The Shrinathji
temple at Nathdwara, for instance, was said to have received
a firman from the emperor Akbar. Given the colonial
obsession with orderliness and documentation, this situation
presented a problem – large areas of land were owned,
managed and cultivated by shebaits and mohunts who
were clearly not the owners. Temples were, by their nature,

50 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5 th Edition Eastern Law House, (1983) at
page 28

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malleable and apt to grow and change. The entity with

some permanence was the idol and it is presumably for
that reason that the legal concept of the Hindu idol as a
juristic entity owning land evolved. The reason may have
been purely fiscal – these lands had to be surveyed, their
ownership ascertained, and then assessed for (or exempted
from) land revenue and other taxes. But the ownership of
land almost always depended on the establishment of a
positive act of giving – by firman, sanad or any other
instrument that unequivocally shows a dedication of the land
to the idol.‖51 (Emphasis supplied)

The reasons for the recognition of the idol as an entity in law are intrinsically tied

to the historical circumstances in which recognition took place. The setting up of

religious endowments by individuals, merchants and rulers is an age-old practice

in India. However, the colonial administration in India and English law of the time

lacked the legal framework within which to record, tax and ultimately adjudicate

upon claims with respect to Hindu religious endowments. Disputes arose with the

increase in the value of the properties dedicated. The establishment of courts

across the country led to their increasingly having to adjudicate upon claims

concerning endowments, idols, and debutter properties.

J.2 Idols and juristic personality

107. English and Indian judges in India were called upon to determine the legal

characteristics of Hindu idols and the properties associated with them. In

Manohar Ganesh Tambekar v Lakhmiram Govindram52, the plaintiffs were

persons interested in the religious foundation of the temple of Dakor and the

defendants were recipients of the temple‘s offerings. The plaintiff‘s prayer was

51 Gautam Patel, Idols in Law, Vol. 45, No.50, Economic and Political Weekly (11-17 December 2010) at page 49
52 ILR (1888) 12 Bom 247

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that the court appoint a receiver for the accountable disposal of the offerings

made at the temple. On the other hand, the defendants submitted that the

temple offerings were their own absolute and secular property. A Division Bench

of the Bombay High Court analysed the circumstances in which the case took

place and considered the need to confer legal personality on the Hindu idol. The

Court, speaking through Justice R West observed:

―For a period extending over several centuries the revenues
of the temple seem to have but slightly, if at all, exceeded the
outlay required to maintain its services, but recently these
revenues have very largely increased. The law which
protects the foundations against external violence guards it
also internally against mal-administration, and regulates,
conformable to the central principle of the institution, the use
of its augmented funds.‖

108. The Hindu practice of dedicating properties to temples and idols had to be

adjudicated upon by courts for the first time in the late nineteenth century. The

doctrine that Hindu idols possess a distinct legal personality was adopted by

English judges in India faced with the task of applying Hindu law to religious

endowments. Property disputes arose and fuelled questions about the

ownership of the properties. Two clear interests were recognised as subjects of

legal protection. First, there existed the real possibility of maladministration by

the shebaits (i.e. managers) where land endowed for a particular pious purpose,

ordinarily to the worship of an idol, was poorly administered or even alienated.

Second, where the land was dedicated to public worship, there existed the threat

that access or other religious benefits would be denied to the public, in particular

to the devotees. Where the original founder of the endowment was not alive and

the shebait was not the owner of the lands, how were the courts (and through
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them the State) to give effect to the original dedication? To provide courts with a

conceptual framework within which they could analyse and practically adjudicate

upon disputes involving competing claims over endowed properties, courts

recognised the legal personality of the Hindu idol. It was a legal innovation

necessitated by historical circumstances, the gap in the existing law and by

considerations of convenience. It had the added advantage of conferring legal

personality on an object that within Hinduism had long been subject to

personification. The exact contours of the legal personality so conferred are of

relevance to the present case to which this judgement now adverts.

109. In conferring legal personality on the Hindu idol, courts drew inspiration

from what they saw as factual parallels in Roman law. Justice B K Mukherjea

summarises the position:

―…from the fifth century onwards – foundations created by

individuals came to be recognised as foundations in the true
legal sense, but only if they took the form of Pia Causa, i.e.,
were devoted to ‗pious uses‘ only, in short, if they were
charitable institutions. Whenever a person dedicated
property whether by gift inter vivos or by will – in favour
of the poor or the sick, or prisoners or orphans, or aged
people, he thereby created ipso facto a new subject of
legal rights – the poor house, the hospital and so forth and
the dedicated property became the sole property of the new
subject – it became the property of the new juristic person
whom the founder had called into being.
…
1…A private person might make over property by way of
legacy or gift to a corporation already in existence and might,
at the same time, prescribe the particular purpose for which
the property was to be employed, e.g., feeding the poor, or
giving relief to the sick or distressed. The receiving
corporation would be in the position of a trustee and would
be legally bound to spend the funds for the particular

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purpose. The other alternative was for the donor himself

to create an institution or foundation. This would be a
new juristic person, which depended on its origin on
nothing else but the will of the founder, provided it was
directed a charitable purpose. The foundation would be
the owner of the dedicated property, and the
administrators would be the trustees bound to carry out the
object of the foundation.‖53 (Emphasis supplied)

In Roman law, where property was dedicated to a particular religious or charitable

purpose and not to an identified donee, the religious/charitable purpose itself

was elevated to the status of a legal foundation. The foundation was a separate

legal entity and came to own the dedicated property. Hindu law does not make a

distinction between religious and charitable purposes. However,

a clear parallel exists in the case of Hindu endowments.

110. In Manohar Ganesh Tambekar, the Division Bench of the Bombay High

Court set out the rationale for and the process by which legal personality is

conferred on a Hindu idol. Justice West observes:

―The Hindu law, like the Roman law and those derived from
it, recognizes, not only corporate bodies with rights of
property vested in the corporation apart from its individual
members, but also juridical persons or subjects called
foundations. A Hindu, who wishes to establish a religious
or charitable institution, may, according to his law,
express his purpose and endow it, and the ruler will give
effect to the bounty … A trust is not required for this
purpose: the necessity of a trust in such a case is indeed
a peculiarity and a modern peculiarity of the English law.
In early times a gift placed, as it was expressed, ―on the
altar of God sufficed to convey to the church the lands thus
dedicated.
…
Such a practical realism is not confined to the sphere of law;
it is made use of even by merchants in their accounts, and by
furnishing an ideal centre for an institution to which the
necessary human attributes are ascribed. … But if there is a
juridical person, the ideal embodiment of a pious or

53 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5 th Edition, Eastern Law House (1983) at
page 9

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benevolent idea as the centre of the foundation, this

artificial subject of rights is as capable of taking
offerings of cash and jewels as of land. Those who take
physical possession of the one as of the other kind of
property incur thereby a responsibility for its due application
to the purposes of the foundation.
…
The law which protects the foundations against external
violence guards it also internally against mal-administration,
and regulates, conformable to the central principle of the
institution, the use of its augmented funds. It is only as
subject to this control in the general interest of the
community that the State through the law courts
recognizes a merely artificial person. It guards property
and rights as devoted, and thus belonging, so to speak,
to a particular allowed purpose only on a condition of
varying the application when either the purpose has become
impracticable, useless or pernicious, or the funds have
augmented in an extraordinary measure.‖
(Emphasis
supplied)

111. The decision in Manohar Ganesh Tambekar indicates that the expression

of a religious or charitable purpose and the creation of an endowment to

effectuate it was adequate. The creation of a trust, as in English law was not

necessary. The creation of an endowment resulted in the creation of an artificial

legal person. The artificial or juridical person represents or embodies a pious or

benevolent purpose underlying its creation. Legal personality is conferred on the

pious purpose of the individual making the endowment. Where the endowment is

made to an idol, the idol forms the material representation of the legal person.

This juridical person (i.e. the pious purpose represented by the idol) can in law

accept offerings of movable and immovable property which will vest in it. The

legal personality of the idol, and the rights of the idol over the property endowed

and the offerings of devotees, are guarded by the law to protect the endowment

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against maladministration by the human agencies entrusted with the day to day

management of the idol.

112. Shortly after the decision in Manohar Ganesh Tambekar, the Madras

High Court was called upon to decide a dispute pertaining to the appointment of

the head of a Mutt. In Vidyapurna Tirtha Swami v Vidyanidhi Tirtha Swami54,

a Division Bench examined the legal character of idols, temples and mutts in

some detail. Justice B Ayyangar went to on to observe:

―As already stated, the worshippers are beneficiaries only in

a spiritual sense, and the endowments themselves are
primarily intended for spiritual purposes, through indirectly
and incidentally a good number of people derive material or
pecuniary benefit therefrom as office-holders, servants or
objects of charity…The question has not been suggested
or considered, whether the community itself for whose
spiritual benefit the institution was founded and
endowed may not be more appropriately be regarded as
a corporate body forming the juristic person in whom the
properties of the institution are vested and who act
through one or more of the natural persons forming the
corporate body, these latter being the dharmakartas or
panchayats, &c., charged with the execution of the trusts of
the institution and possessing strictly limited powers of
alienation of the endowments, as defined in the cases cited
above. Though a fluctuating and uncertain body of men
cannot claim a profit a prendre in alieeno solo, nor be the
grantee of any kind of real property (see Goodman v Mayor
of Saltash, yet there is high authority for treating such
community as a corporation or juristic person in relation to
religious foundations and endowments.
…
For all practical purposes however it is immaterial
whether the presiding idol or the community of
worshippers is regarded as the corporation or juristic
person in which the properties are vested, though from a
juristic point of view there may be a difference of opinion
as to which theory is more scientific. In the words of a
recent writer on Jurisprudence (Salmond‘s ‗Jurisprudence‘
(1902), 346) ―the choice of the corpus into which the law

54 ILR (1904) 27 Mad 435

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shall breathe the breath of a fictious personality is a matter of

form rather than of substance, of lucid and compendious
expression, rather than of legal principle,‖ …‖
(Emphasis supplied)

The conferral of juristic personality by courts is to overcome existing shortfalls in

the law and ensure societally satisfactory and legally sound outcomes. Justice

Ayyangar observes that a key societal interest sought to be protected by the

conferral of juristic personality on the idol was the protection of the devotees‘

interests. Justice Ayyangar notes that such protection could also be achieved by

conferring juristic personality on the devotees as a collective. However, given the

widespread personification of the idol, he holds that juristic personality should

vest in the idol on considerations of practicality and convenience.

113. In Bhupati Nath Smrititirtha v Ram Lal Maitra55, a five judge Bench of the

Calcutta High Court was constituted to answer the question whether bequests by

a testator to trustees for the establishment of an idol of the Goddess Kali and the

worship of the idol after the testator‘s death were invalid due to the Hindu law

principle which stated that gifts could only be made to sentient beings. The

testator in that case had dedicated certain properties to an idol. While the

testator died in 1890, the idol was not consecrated until 1894. A question arose

as to whether the non-existence of the idol at the time of the testator‘s death

invalidated the provisions of the will dedicated the property. In an erudite opinion

holding that such bequests were valid, Chief Justice Lawrence Jenkins held:

―… but the testator directed all his property to be placed in

the hands of persons named by him and subject to certain
payments these persons were directed to spend the surplus
income which might be left in the sheba and worship of Kali
55 ILR (1909-1910) 37 Cal 128

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after establishing the image of the Kali after the name of his
mother. Now this manifestly was a disposition for religious
purposes and such dispositions are favoured by Hindu Law.

…In England it has been held that gifts ―for the worship of
God‖ or ―to be employed in the service of the Lord and
Master‖ are good. Then does it invalidate the disposition
that the discretion is for the spending of the surplus
income on the sheba and worship of Kali ―after
establishing the image of the Kali after the name of my
mother.‖ I think not: the pious purpose is still the legatee,
the establishment of the image is merely the mode in
which the pious purpose is to be effected.‖
(Emphasis supplied)

In his separate opinion, Justice Stephen noted:

―But though a dedication to a deity does not constitute a
gift, it has legal effect. The intention of the donor is that the
subject-matter of the gift shall be used for doing honour to
the deity by worship, and for conferring benefit on the
worshippers and the ministers of the deity who conduct it.
This worship is properly and I understand necessarily carried
out by having recourse to an image or outer physical object,
but the image is nothing till inspired by the deity. It is the
duty of the sovereign to see that the purposes of the
dedication are carried out.‖
(Emphasis supplied)

In holding that the non-existence of the idol at the time of the testator‘s death did

not matter, the opinion of Chief Justice Jenkins clearly demonstrates that the

endowed property vests in the purpose itself. As he notes, ―the pious purpose is

still the legatee.‖ It is on this purpose that juristic personality is conferred. In

recognising the pious purpose as a juristic person, the state gives effect to, and

protects the endowment. The idol is the material embodiment of the testator‘s gift.

As the gift is one to ensure the continued worship of the deity, the idol is a

physical manifestation of the testator‘s pious purpose. Where courts recognise

the legal personality of the idol they are in effect recognising and protecting the

testator‘s desire that the deity be worshipped.

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114. The understanding espoused by the decisions referred to above is concisely

summarised by Chief Justice B K Mukherjea in the following terms:

―1.48A.- Principle as to personality of institutions.- Apart

from natural persons and corporations, which are recognised
by English law, the position under Hindu law is that if an
endowments is made for a religious or charitable institution,
without the instrumentality of a trust, and the object of the
endowment is one which is recognised as pious, being
either religious or charitable under the accepted notions
of Hindu law, the institution will be treated as a juristic
person capable of holding property.
…
1.48B. Idols.- The position as to idols is of a special nature. In
the Hindu Debutter, it seems, the position is slightly different,
and not the whole endowment, but the idol which as an
embodiment of a pious or benevolent idea, constitutes
the centre of the foundation and is looked upon as the
juristic being in which the Debutter property vests. After
all, juristic personality is a mere creation of law and has its
origins in a desire for doing justice by providing, as it were,
centres for jural relations. As Salmond says: ―It may be of
as many kinds as the law considers proper,‖ and the choice
of the corpus into which the law shall breathe the breath of
fictious personality is a matter of form than of substance.‖56
(Emphasis supplied)

115. A Hindu may make an endowment for a religious purpose. There is a

public interest in protecting the properties endowed and ensuring that the original

pious purpose of the dedicator is fulfilled. The law confers legal personality on

this pious purpose. However, as Chief Justice B K Mukherjea notes, it is the idol,

as the material manifestation of the juristic person which is ―looked upon‖ as the

centre in which the property vests. The idol as an embodiment of a pious or

benevolent purpose is recognised by the law as a juristic entity. The state will

therefore protect property which stands vested in the idol even absent the
56 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust , 5th Edn. Eastern Law House (1983) at
page 36

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establishment of a specific or express trust. The pious purpose, or ‗benevolent

idea‘ is elevated to the status of a juristic person and the idol forms the material

expression of the pious purpose through which legal relations are affected. It is

the pious purpose at the heart of the dedication which is the basis of conferring

legal personality on the idol and which is the subject of rights and duties. The

need to confer juristic personality arises out of the need for legal certainty as to

who owns the dedicated property, as well as the need to protect the original

intention of the dedicator and the future interests of the devotees. It was open for

courts to even confer the personality on the community of devotees in certain

situations, but the idol is chosen as a centre for legal relations as the physical

manifestation of the pious purpose.

116. The reason for this is outlined in the decision of the Calcutta High Court in

Mohatap Bahadur v Kali Pada Chatterjee57. In the distant past, the Maharaja

of Burdwan dedicated certain lands for the worship of an idol (the ‗Trilokeswar

Shiva‘) and tasked the predecessor of the respondent as shebaits for the

management of the worship. Subsequent to the dedication, the idol was washed

away by the flooding of a river nearby. The Maharaja later built a new idol in the

same village. However, the respondents refused to perform worship at the site of

the new idol on the ground that the original idol had been washed away. The

appellant‘s sought a direction compelling the respondents to perform necessary

religious rites at the site of the freshly constructed idol. The Bench consisting of

Chief Justice Jenkins and Justice Mookerjee held:

57 AIR 1914 Cal 200

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―4. …It is clear that the property must have been made out
by the Maharajah to the predecessor of the defendant in
order that the income might be applied for the worship of the
image [of] Trilokeswar Shiva. The question arises whether
this trust came to an end when the temple was washed away
and the image was broken….

5. …Were the contention of the respondent to

prevail the endowment would come to an end, if, as has
happened in this case, the land upon which the temple
stood was washed away by the action of the river. This
view is not supported by any text or any principle of the
Hindu law which has been brought to our notice.

6. It is, on the other hand, clearly opposed to the

principle recognized by a Full Bench of this court in the
case of Bhupati Nath Smrititirtho v. Ramlal Maitra. If then
the endowment was not destroyed when the land upon which
the temple stood was washed away and the image was
broken, what has happened since then to alter the position of
the parties? The defendant is in the same position as if he
held a service tenure. The land was given to him for definite
purpose, namely, that he might apply the income thereof for
the purpose of the service of the image established by the
Maharaja….‖
(Emphasis supplied)

The idol constitutes the embodiment or expression of the pious purpose upon

which legal personality is conferred. The destruction of the idol does not result in

the termination of the pious purpose and consequently the endowment. Even

where the idol is destroyed, or the presence of the idol itself is intermittent or

entirely absent, the legal personality created by the endowment continues to

subsist. In our country, idols are routinely submerged in water as a matter of

religious practice. It cannot be said that the pious purpose is also extinguished

due to such submersion. The establishment of the image of the idol is the manner

in which the pious purpose is fulfilled. A conferral of legal personality on the idol

is, in effect, a recognition of the pious purpose itself and not the method through

which that pious purpose is usually personified. The pious purpose may also be

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fulfilled where the presence of the idol is intermittent or there exists a temple

absent an idol depending on the deed of dedication. In all such cases the pious

purpose on which legal personality is conferred continues to subsist.

117. After independence, the principles applicable to the Hindu law of

endowments were affirmed by a four judge bench of this Court in Deoki Nandan

v Murlidhar63. In 1919, a Hindu testator executed a will bequeathing his lands to

the idol (or ‗Thakur‘) of Shri Radhakrishnaji. A dispute arose between the direct

descendant of the testator and his distant agnates on the management of the

Thakur. It was contended that the Thakur was being mismanaged and the public

63
1956 SCR 756
was denied worship. A declaration that the Thakurdwara was a public temple was

sought. The issue facing this Court was how to construct the scope of the

dedication in the testator‘s will. Justice Venkatarama Ayyar, speaking for this

Court, held:

―6. …The true purpose of a gift of properties to the idol is not

to confer any benefit on God, but to acquire spiritual benefit
by providing opportunities and facilities for those who desire
to worship. In Bhupati Nath Smrititirtha v Ram Lal Maitra it
was held on a consideration of these and other texts that a gift
to an idol was not to be judged by the rules applicable to a
transfer to a ‗sentient being‘, and that the dedication of
properties to an idol consisted in the abandonment of the
owner of his dominion over them for the purpose of their
being appropriated for the purposes which he intends.
Thus, it was observed by Sir Lawrence Jenkins C.J at p.
138 that ―the pious purpose is still the legatee, the
establishment of the image is merely the mode in which
the pious purpose is to be effected‖ and that ―the
dedication to a deity‖ may be ―a compendious
expression of the pious purpose for which the dedication
is designed‖.

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7. When once it is understood that the true beneficiaries of

religious endowments are not the idols but the
worshippers, and that the purpose of the endowment is
the maintenance of that worship for the benefit of the
worshippers, the question whether an endowment is private
or public presents no difficulty. The cardinal point to be
decided is whether it was the intention of the founder that
specified individuals are to have the right of worship at the
shrine, or the general public or any specified portion thereof.‖
(Emphasis supplied)

Upon making an endowment, the donor relinquishes all claims to the endowed

property. The property now vests in the pious purpose at the heart of the

endowment which is recognised as a legal person. The idol forms the material

manifestation of the pious purpose and the consequent centre of jural relations.

The beneficiaries of the endowment are worshippers and the proper maintenance

of worship to the idol is to enable the worshippers to achieve the spiritual benefit

of being in communion with the divine.

118. In Yogendra Nath Naskar v Commissioner of Income Tax, Calcutta58,

in deciding that a Hindu idol (or ‗deity‘) fell within the definition of ―individual‖

under Section 3 of the Income Tax Act 1922, Justice Ramaswami speaking for a

three-judge Bench of this Court held:

―6. …It should however be remembered that the juristic

person in the idol is not the material image, and it is an
exploded theory that the image itself develops into a legal
person as soon as it is consecrated and vivified by the Pran
Pratishta ceremony. It is not also correct that the Supreme
Being of which the idol is a symbol or image is the recipient
and owner of the dedicated property.
…
The correct legal position is that the idol as representing
and embodying the spiritual purpose of the donor is the
juristic person recognised by law and in this juristic
person the dedicated property vests. As observed by Mr.

58 (1969) 1 SCC 555

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[J]ustice B.K. Mukherjea: ―With regard to the debutter… It is

not only a compendious expression but a material
embodiment of the pious purpose and though there is
difficulty in holding that property can reside in the aim or
purpose itself, it would be quite consistent with sound
principles of Jurisprudence to say that a material object
which represents or symbolises a particular purpose can
be given the status of a legal person, and regarded as
owner of the property which is dedicated to it.‖ … The
legal position is comparable in many respects to the
development in Roman Law.‖ (Emphasis supplied)

The purpose behind the dedication

119. Similar to the conceptual grounding of juristic personality in the case of a

ship in admiralty law to personify actions in rem, the material object (i.e. idol),

seen as an embodiment of the purpose behind the dedication, was chosen as the

site of legal relations. The creation by judicial interpretation of an entity in law

sub-served an important function. For it obviated a situation that would arise if,

despite a dedication by a Hindu for a pious purpose, there existed no legally

recognised entity which could receive the dedication. Such a situation was

obviated by the judicially recognised principle that where an endowment is made

for a religious or charitable institution and the object is pious, the institution will be

treated as a juristic person even in the absence of a trust. Similarly, where the

dedication is for an idol to be worshipped, the interests of present and future

devotees would be at risk in the absence of a legal framework which ensured the
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regulation of the dedication made. The conferment of legal personality on the

pious purpose ensured that there existed an entity in which the property would

vest in an ideal sense, to receive the dedication and through whom the interests

of the devotees could be protected. This was for the purpose of fulfilling the

object of the dedication and through the performance of worship in accordance

with religious texts, ensuring that the devotees realised peace through prayer.

120. The recognition of juristic personality was hence devised by the courts to

give legal effect to the Hindu practice of dedicating property for a religious or

‗pious‘ purposes. The founder or testator may choose to dedicate property for

the use of a pious purpose. In many of the above cases, this pious purpose took

the form of continued maintenance and worship of an idol. There was a clear

state interest in giving effect to the will of the founder or testator who has so

dedicated property, as well as for ensuring that the property is at all times used

for the purpose of the dedication. A legal fiction was created by which legal

personality was conferred on the religious or charitable purpose for which the

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

personality finds ‗compendious expression‘ in the idol itself. By conferring legal

personality, the court gave legal effect to the dedication by creating an entity to

receive the properties so dedicated. By stating that the artificial person created is

in fact the owner of the dedicated properties, the court guarded against

maladministration by the shebait. Even though the artificial legal person cannot

sue without the assistance of a natural person, a legal framework was brought

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into existence by which claims for and against the dedicated property could be

pursued.

121. Though conceptually courts attributed legal personality to the intention of

the founder, a convenient physical site of legal relations was found in the physical

idol. This understanding is reiterated by this Court‘s observations in Deoki

Nandan that the idol is a ―compendious expression‖ of the testator‘s pious

purpose. The idol, as a representation or a ―compendious expression‖ of the

pious purpose (now the artificial legal person) is a site of legal relations. This is

also in consonance with the understanding that even where an idol is destroyed,

the endowment does not come to an end. Being the physical manifestation of the

pious purpose, even where the idol is submerged, not in existence temporarily, or

destroyed by forces of nature, the pious purpose recognised to be a legal person

continues to exist.

122. The extent to which the doctrine arose out of legal necessity and

convenience is exemplified by Justice Ayyangar in Vidyapurna Tirtha Swami v

Vidyanidhi Tirtha Swami59 when the learned judge noted that it was even

possible, by legal fiction, to recognise the community or collective of devotees as

a single legal person. As he noted, this would have equally served the court‘s

goals of creating an adequate legal framework for protecting the dedicated

properties and the interests of the devotees. However, the court notes that, as

there was no ―practical‖ difference, the legal fiction was applied to the idol and

not to the devotees for the sake of simplicity. This course of precedent denotes

59 ILR (1904) 27 Mad 435

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how the continued personification of the idol in religious practice laid the

foundations for the court to choose the idol as the site of legal relations.

123. The recognition of the Hindu idol as a legal or ―juristic‖ person is

therefore based on two premises employed by courts. The first is to recognise

the pious purpose of the testator as a legal entity capable of holding property in

an ideal sense absent the creation of a trust. The second is the merging of the

pious purpose itself and the idol which embodies the pious purpose to ensure the

fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person.

The property endowed to the pious purpose is owned by the idol as a legal

person in an ideal sense. The reason why the court created such legal fictions

was to provide a comprehensible legal framework to protect the properties

dedicated to the pious purpose from external threats as well as internal

maladministration. Where the pious purpose necessitated a public trust for the

benefit of all devotees, conferring legal personality allowed courts to protect the

pious purpose for the benefit of the devotees.

124. Having set out the history and the underlying basis of the legal innovation

surrounding the conferral of juristic personality on Hindu idols, it becomes

necessary to advert to the principle question before us. The present case turns,

in a significant measure, on the answer to the contention urged on behalf of the

plaintiffs in Suit 5 that the first and second plaintiffs - Bhagwan Sri Ram Virajman

and Asthan Shri Ram Janam Bhumi are juristic persons. If this contention is

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accepted, this Court will then be required to adjudicate upon the legal

consequences of the second plaintiff being declared a juristic person.

J.3 Juristic personality of the first plaintiff

125. For the devotees of Lord Ram, the first plaintiff in Suit 5, ―Bhagwan Sri

Ram Virajman‖ is the embodiment of Lord Ram and constitutes the resident deity

of Ram Janmabhumi. The faith and belief of the Hindu devotees is a matter

personal to their conscience and it is not for this Court to scrutinise the strength

of their convictions or the rationality of their beliefs beyond a prima facie

examination to ascertain whether such beliefs are held in good faith.

126. The oral and documentary evidence shows that the Hindu devotees of

Lord Ram hold a genuine, long standing and profound belief in the religious merit

attained by offering prayer to Lord Ram at the site they believe to be his

birthplace. Evidence has been led by the plaintiffs in Suit 5 to show a long

practice of

Hindu worship to Lord Ram at the disputed site. The travel logs of Joseph

Tieffenthaler in the eighteenth century and Robert Montgomery Martin in the

early nineteenth century record the prevalence of Hindu worship at the disputed

site. They also reference special occasions such as Ram Navmi during which

Hindu devotees converged upon the Janmasthan from distant areas motivated by

the desire to offer prayer to Lord Ram. The continued faith and belief of the Hindu

devotees in the existence of the Janmasthan below the three domed structure is

evidenced by the activities of the Nirmohis, individual devotees such as Nihang

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Singh and the endless stream of Hindu devotees over the years who visited the

disputed site. This is testament to the long-held belief in the sanctity of the

disputed site as a place of worship for the Hindu religion. It is not necessary to

the determination of the legal personality of the first plaintiff in Suit 5 to establish

whether the devotees believed that the exact spot under the central dome was

the birth-place of Lord Ram or whether the faith and belief of the devotees itself

can confer title. These questions are addressed at a later part of this judgement.

For the present purposes, it is sufficient to note that the factum of Hindu belief in

the sanctity of the disputed site is established by evidence.

127. For the purposes of recognising a legal person, the relevant inquiry is the

purpose to be achieved by such recognition. To the extent such purpose is

achieved, the form or corpus of the object upon which legal personality is

conferred is not a matter of substance but merely a question of form. As

observed by Salmond, so long as the conferral of legal personality serves the

purpose sought to be achieved, legal personality may even be conferred on an

abstract idea. In the case of Hindu idols, legal personality is not conferred on the

idol simpliciter but on the underlying pious purpose of the continued worship of

the deity as incarnated in the idol. Where the legal personality is conferred on the

purpose of a deity‘s continued worship, moving or destroying the idol does not

affect its legal personality. The legal personality vests in the purpose of continued

worship of the idol as recognised by the court. It is for the protection of the

continued worship that the law recognises this purpose and seeks to protect it by

the conferral of juristic personality.

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128. In addition to the continued worship of the deity, legal personality is

conferred on Hindu idols to provide courts with a conceptual framework within

which to practically adjudicate disputes involving competing claims over disputed

property endowed to or appurtenant to Hindu idols. In order to adjudicate

disputes, the court locates a site of jural relations to determine proprietary claims,

maladministration by shebaits and protect the interests of devotees. The law thus

protects the properties of the idol even absent the establishment of a specific or

express trust. In the proceedings before us, the legal rights and properties of the

first plaintiff in Suit 5 were in dispute. However, no submissions were made

challenging the legal personality of the first plaintiff. Significantly, Dr Rajeev

Dhavan, learned Senior Counsel appearing for the plaintiffs in Suit 4 admitted the

juristic personality of the first plaintiff. The question of the legal personality of the

first plaintiff is distinct from the properties that appertain to the first plaintiff. The

determination of the properties that vest in the deity is discussed in light of the

competing claims to the property later in this judgement.

129. In the present case, the first plaintiff has been the object of worship for

several hundred years and the underlying purpose of continued worship is

apparent even absent any express dedication or trust. The existence of the idol is

merely a question of form, or corpus, and the legal personality of the first plaintiff

is not dependent on the continued existence of the idol. At the heart of the

present dispute are questions pertaining to the rightful manager of the deity and

the access of the devotees of Lord Ram to the idols. To ensure the legal

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protection of the underlying purpose and practically adjudicate upon the dispute,

the legal personality of the first plaintiff is recognised.

J.4 Juristic personality of the second plaintiff

Submissions

130. Mr K Parasaran, learned Senior Counsel appearing on behalf of the

plaintiffs in Suit 5 urged that the second plaintiff is a juristic person. He submitted

that in Hindu Law the concept of a juridical person is not limited to idols.

According to Mr Parasaran, the relevant question is whether prayer is offered to

the deity and not the form in which the deity appears. It was contended that

―Asthan Sri Ram Janam Bhoomi‖ is an object of worship and personifies the

spirit of the divine. The faith of the devotees regards the land as a deity and

prayer is offered to it. Hence, it was on this basis that the plaintiffs in Suit 5

submit that this

court must confer juristic personality on the land represented as Ram

Janmasthan. To support this contention, it was urged that God is shapeless and

formless and there is no requirement that the object of worship be an idol. It was

urged that the performance of the parikrama (circumambulation) around the

disputed spot with the faith and belief that it is the birth-place of Lord Ram

delineates the boundaries of the property on which the status of a juristic entity

must be conferred. To support this contention, Mr Parasaran relied on the

following decisions, which shall be adverted to in the course of the judgment:

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Manohar Ganesh Tambekar v Lakhmiram Govindram60, Bhupati Nath

Smrititirtha v Ram Lal Maitra67, Rampat v Durga Bharthi68, Ram Brahma v

Kedar Nath61 , Madura, Tirupparankundram v Alikhan Sahib6263, The Board of

Commissioners for Hindu Religious Endowments, Madras v Pidugu

Narasimhan71, TRK Ramaswami Servai v The Board of Commissioners for

the Hindu Religious Endowments, Madras6465, The Poohari Fakhir

Sadavarthy of Bondipiputram v The Commissioner, Hindu Religious and

Charitable Endowments,73 Venkataramana Murthi v Sri Rama Mandhiram66,

Sastri

Yagnapurushad Ji v Muldas Bhudardas Vaishya67, Yogendra Nath Naskar v

CIT, Calcutta68, Kamaraju Venkata Krishna Rao v Sub Collector, Ongole69,

Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass70;

and Thayarammal v Kanakammal71.

131. Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the

plaintiffs in Suit 5 adopted the submissions of Mr Parasaran that the second

plaintiff in Suit 5 is a juristic person. He urged that there is a distinction between:

60 ILR 1888 12 Bom

247 67 ILR 1909 37 Cal
128 68 AIR 1920 Oudh
258
61 (1922) 36 CLJ 478
62 (1931) 61 Mad. LJ 285
63 MLJ 134
64 ILR 1950 Mad 799
65 Supp 2 SCR 276
66 (1964) 2 ANWR 457
67 (1966) 3 SCR 242
68 (1969) 1 SCC 555
69 (1969) 1 SCR 624
70 (2000) 4 SCC 146
71 (2005) 1 SCC 457

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(i) the land being a deity; (ii) the land being the abode of a deity; and (iii) the land

being the property of a deity. It was urged that in the present case, the land

constituting the disputed site, is an object of worship and is itself the deity. Mr

Vaidyanathan urged that the determination of the second plaintiff as a juristic

person renders infructuous questions of possession, joint-possession or adverse

possession as the land itself is a legal person and no other person can possess a

legal personality. It was urged that the mere fact that a mosque existed at the

disputed site cannot evidence a claim of either title or joint possession on behalf

of the Sunni Waqf Board. By an extension of the same argument, once it is held

that the disputed site is a juristic person, no partition of the land can be affected

as a deity, recognised as a legal person is impartible and cannot be divided. Any

division of the property will amount to a destruction of the deity. It is on this basis

that the impugned judgment of the High Court directing a three-way division of

the property was challenged. Reliance was placed in this regard on the decisions

in Pramatha Nath Mullick v Pradyumna Kumar Mullick72, Idol of Thakurji Shri

Govind Deoji Maharaj, Jaipur v Board of Revenue, Rajasthan73, and Profulla

Chorone Requitte v Satya Chorone Requitte74.

132. Mr Vaidyanathan submitted that the disputed property, being a legal

person, is res nullius. Since the disputed property is a juristic person, it is not

alienable. It was contended that land which is res nullius or res extra

commercium cannot be acquired by adverse possession. It was urged that even

if the image of the idol is broken, a deity is immortal and thus, the construction of

72 (1924-25) 52 IA 245
73 (1965) 1 SCR 96
74 (1979) 3 SCC 409

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the mosque on the land did not take away from its character as a deity. Reliance

was placed on the decisions in Mahant Ram Saroop Dasji v SP Sahi, Special

Officer75-in-Charge of the Hindu Religious Trusts83, Ram Jankijee Deities v

State of Bihar76, Amrendra Pratap Singh v Tej Bahadur Prajapati77,

Thayarammal v Kanakammal78 and Rajasthan Housing Board v New Pink

City Nirman Sahkari Samiti Limited79.

133. On the other hand, Dr Rajeev Dhavan, learned Senior Counsel appearing

for the Sunni Central Waqf Board, the plaintiffs in Suit 4, urged that the ‗Asthan

Ram Janma Bhumi‘ (the second plaintiff in Suit 5) is not a juristic person. He

submitted that the contention that the disputed land is a juristic person was raised

for the first time only in 1989. Dr Dhavan urged that there are two separate and

distinct issues that have arisen before this Court. One concerns the faith and

belief that Lord Ram was born in Ayodhya and the evidence adduced to this

effect. The other is the set of legal consequences that flow from the disputed

property being elevated to the status of a juristic person. Dr Dhavan submitted

that while the faith and belief of a sect that religious significance attaches to the

birth-place of Lord Ram cannot be questioned, the precise site which constitutes

the place of birth is in dispute. Moreover, the property cannot be elevated to the

status of a juristic person only on the basis of faith and belief that it is the

birthplace of Lord Ram. To this end, it was submitted that the subjective belief of

75 Supp (2) SCR 583

76 (1999) 5 SCC 50
77 (2004) 10 SCC 65
78 (2005) 1 SCC 457
79 (2015) 7 SCC 601

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a certain section of devotees cannot lead to the objective consequence of a

proprietary claim in law. It was urged that in the Vedic period, the worship of

physical objects of nature was practiced in ancient India. Underlying the worship

of the object was the purpose it served. Dr Dhavan contended that the status of

juristic personality does not attach to every object of religious significance, and

that a positive act of sanctification or recognition is required.

134. Dr Dhavan further submitted that the conferment of legal personality on

immoveable property is not supported by the existing law on the legal personality

of Hindu idols and that conferring legal personality on land would be an

innovation leading to the insulation of land from any form of adjudication. Legal

impregnability would be conferred merely on the basis of the faith and belief of

devotees. It was urged that the conferral of juristic personality on the second

plaintiff would create two legal regimes – one applicable to idols and the other to

land – both with distinct rights, power, duties and interests. Dr Dhavan drew a

distinction between the applicable regime governing the idol and the regime

governing land (as emerging from the submissions of the plaintiffs in Suit 5) in

the following terms:

(i) The legal regime applicable to the first plaintiff as a recognised Hindu

idol – properties of the idol vest in it in an ideal sense; any claim to title is

actionable only at the behest of the shebait (unless the shebait has acted

contrary to the interests of the idol); and the law of adverse possession

and limitation would apply to claims involving property owned by the idol;

and

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(ii) The legal regime applicable to the second plaintiff – juristic recognition

would be premised on the subjective belief of the devotees that the area is

a deity; the conferral of juristic personality renders infructuous any

competing proprietary claims; and the law of limitation and adverse

possession are inapplicable to the property in question.

135. Dr Dhavan argues against accepting any consequence as it emerges

based on the above distinction. Dr Dhavan contended that the conferral of

juridical personality on the second plaintiff would carve out a sphere of legal

impregnability. He submitted that while recognising the idol as a legal person is

legally defensible and consistent with the jurisprudence of this Court, conferring

legal personality on land itself is a legal innovation conferring rights that are not

available to the first plaintiff. It was finally urged that no distinction must be drawn

between Indic religions and other religions and no plea for constitutional

protection could be taken by the plaintiffs in Suit 5 in what is essentially a civil

matter. This would result in the faith and belief of one religion influencing the

outcome of a civil adjudication on private rights between two religious

communities.

These rival submissions will now be analysed.

Distinguishing religious significance and juristic personality

136. Recognition of the religious significance of a place as a place of public

worship is conceptually distinct from recognising the place as a juristic person.

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Ram Janmabhumi is undoubtedly of religious significance to the Hindus based on

the faith and belief that it is the birth-place of Lord Ram. A determination by this

Court of whether or not the disputed site is a juridical person will not in any

manner detract from the significance of the faith and belief of the Hindu

community.

137. To support their contention that the second plaintiff is a juristic person,

learned Senior Counsel appearing for the plaintiffs in Suit 5 relied on a wealth of

precedent. A close reading of those decisions indicates that the counsel have

selectively relied on extracts to support the contention that the disputed site is a

juridical person. To determine the extent to which they support the contentions

urged by the plaintiffs in Suit 5, it would be necessary now to analyse the cases

relied upon and examine the context in which they were adjudicated.

138. In Manohar Ganesh Tambekar v Lakhmiram Govindram80, the plaintiff

instituted a suit as a party interested in the maintenance of the religious

foundation of the temple dedicated to a deity. The plaintiff sought to make the

defendants, who were the recipients of the offerings at the temple, accountable

as trustees proper. The defendants claimed that they were the absolute owners

and held all offerings as private property. A Division Bench of the Bombay High

Court held that while private guilds may exist, under English law an association

consisting of a fluctuating or undefined class of individuals, whether or not it

exists for charitable purposes, cannot be vested with property without

incorporation. The defendants however put themselves forward as a body of

80 ILR 1888 12 Bom 247

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proprietors with revenue arising from the accumulated offerings of articles of

value laid at the feet of the idol. The Court, speaking through Justice R West

observed:

―9. The evidence recorded in the case, including that of

many donors to the idol Shri Ranchhod Raiji, shows that
having discharged a religious duty or gained religious
merit by a gift to the deity, the votary is but little
interested in what afterwards becomes of the offering ….
Still he must needs be and is concerned in the
maintenance of a decent and orderly worship. …He
desires a regular and continuous or at least a periodical
round of sacred ceremonies, which might fail if the
offerings of past years were all squandered, while those
of any given year fell short. The sevaks seem to have
received the offerings, both of immovables and of moveables,
with a consciousness, though but a hazy consciousness, that
they were bound, out of the funds thus coming to them, to
provide for the worship of the idol and the convenience of the
pilgrims who resort to the temple.‖
(Emphasis supplied)

The sevaks (defendants) admitted to their responsibility to take care of the

temple. Articles of value were to be consigned to the bhandari. It is in this context

that the Court held:

―11. … Mr. Macpherson admitted for the defendants in this

case that they could not sell the lands bestowed on the idol
Shri Ranchhod Raiji. This restriction is like the one by which
the Emperor forbade the alienation of dedicated lands under
any circumstances Vyav. May., Chap. IV, S. VII, p. 23; Nov.
120, cap., 10. It is consistent with the grants having been
made to the juridical person symbolized or personified in the
idol at Dakor. It is not consistent with this juridical person's
being conceived as a mere slave or property of the sevaks
whose very title implies not ownership, but service of the god.
It is indeed a strange, if not wilful, confusion of thought by
which the defendants set up the Shri Ranchhod Raiji as a
deity for the purpose of inviting gifts and vouchsafing
blessings, 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 embodiment of a
pious or benevolent idea as the centre of the foundation,
this artificial subject of rights is as capable of taking
offerings of cash and jewels as of land.‖

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(Emphasis supplied)

The decision clarifies that an idol as a juridical person is the ―ideal embodiment‖

of a pious or benevolent idea. The status of a juristic person was conferred on the

idol as an entity which encompasses the purpose itself in which capacity the

properties and offerings vest. The observations in this case affirm the position

that juridical personality was conferred on the pious purpose and the property

endowed or accumulated did not itself become a juristic entity. It is not the

property endowed which is a juridical person – it is the idol which as an

embodiment of a pious purpose which is recognised as a juristic person, in whom

the property stands vested.

139. In Rampat v Durga Bharthi81, the respondent claimed, as Mahant of the

‗Asthan‘ as well as under the deed of settlement, that he was entitled to recover

properties which appertain to the ‗Asthan‘ of Parela. One Mr Ghattari

constructed a monastery (‗Asthan‘) at Parela and consecrated its building

towards the service of his ascetic brotherhood and purchased the suit villages for

the maintenance of the institution. Justice Nazir Hasan speaking for the Oudh

Judicial

Commissioner‘s Court on the nature of the ‗Asthan‘ held:

―In my opinion, the Asthan at Parela, as founded, was
completely in accordance with the type of monasteries of the
old days. The several legal concepts which emerge out of the
foregoing narrative may be stated to be as follows: (1) It is a
congregation of Sannyasis, celibates and ascetics, who
has entirely cut themselves off from worldly ties. (2) The
properties appertaining to the Asthan are held in trust for the
purposes of the Asthan. (3) The purposes of the Asthan are
maintenance of the devotees and propagation of charities.
81 AIR 1920 Oudh 258

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(4) The head of the Asthan is the trustee of the institution and
of the properties attached to it….An Asthan therefore is
essentially an institution of Sannyasis, celibates and
ascetics – having no wordly connection either of wealth
or of family.‖
(Emphasis supplied)

In this view, the ‗Asthan‘ was not a building but a seat of religious learning. The

nature of the ‗Asthan‘ abundantly clarifies that is was not treated as corporeal

property, but a charitable institution of learning which was considered to be the

juridical person. The physical property that was the monastery was not treated as

a juristic person. The court concluded that it was the charitable institution as a

juristic person in which the suit villages vested.

140. In Rambrahma Chatterjee v Kedar Nath Banerjee82, the respondents

instituted a suit for a declaration that they were entitled to participate in the bhog

offered to three idols which were consecrated by the common ancestors of the

respondents and the appellant. A temple was constructed, and properties were

dedicated to the idols. The respondents, as descendants of the founders through

their daughters claimed a practice of participating in the bhog and the courts

below found that the descendants in the male line had consistently been

shebaits. The question which arose for determination was whether it was

competent for the founder to direct that the shebaitship should be vested in the

descendants through the son and that the descendants through the daughters

have a right to participate in the bhog offering. The High Court of Calcutta, held

as follows:

82 (1922) 36 CLJ 478

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―…a charitable corporation, in so far as it is charitable, is

the creature of the founder…There is no reason why the
founder, who is competent to provide for the government and
administration of the trust, should not be able to give a
direction for its management, which is not inconsistent with
its character as a religious and charitable trust…The test in
each case is, whether the direction given by the founder is
inconsistent with the nature of the endowment as a religious
and charitable trust and is a colourable device for the evasion
of the law of perpetuities.‖
The court noted that for over two centuries, shebaitship rights had vested in the

descendants through the sons and that the descendants through the daughters

exercised a right to participate in the bhog offering. In this context, the court held

that it would be slow to interfere with the exercise of these rights over a long

duration of time without question and a reasonable presumption will be drawn in

favour of such a right. The plaintiffs in Suit 5 relied on the observation in this case

that a deity is conceived as a real living being. In this regard, the court noted:

―…There is a fundamental distinction between a gift to a

sentient being and an offering or dedication to a deity.
Subject to special usages to the contrary, the offerings do not
become the property of the officiating priest, but contribute to
the maintenance of the shrine with all its rights, ceremonies
and charities… It is sufficient to state that the deity is, in
short, conceived as a living being and is treated in the
same way as the master of the house would be treated
by his humble servant. The daily routine of life is gone
through with minute accuracy; the vivified image is
regaled with the necessaries and luxuries of life in due
succession, even to the changing of clothes, the offering
of cooked and uncooked food, and the retirement to rest.
The dedicated food, known as bhog, is, after completion of
the worship, distributed in charity amongst members of the
family as also among guests invited and uninvited; for in the
oldest Brahminical writings hospitality is regarded as the
discharge of a common debt to humanity and the guest is
honoured as a divinity. In our opinion, a direction that the
descendants of the daughters of the founder should
participate in such a distribution of consecrated food, is in no
way inconsistent with
the purpose of the endowment.‖
(Emphasis supplied)

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The method of worshipping an established deity as a real person is separate and

distinct from the conferral of juristic personality in law. Human personality is

distinct from legal personality. The court made a reference to the methods of

worship performed for an established deity, which is in accordance with the faith

and belief of the worshippers. No question of a juristic person arose in this case.

Madhura Tirupparankundram

141. The plaintiffs in Suit 5 have then placed reliance on the decision of the

Privy Council in Madura, Tirupparankundram v Alikhan Sahib83. It was urged

that in this case an entire hill, as a place of public worship, was recognised as a

juristic person on the basis of the circumambulation performed around it.

Consequently, in the present case, the performance of the parikrama around the

disputed site should (it has been urged) have the effect of the land being

elevated to the status of a juristic person.

142. The Privy Council in Madura Tirupparankundram was concerned with the

ownership of a barren hill in the Madura District of Madras. There was a mosque

at the highest point of the hill. The Tirupparankundram Temple, represented by its

manager, instituted a suit claiming the whole hill as temple property (with the

exception of certain cultivated and assessed lands and the site of the mosque).

The Mohammedan defendants asserted ownership over the mosque and a

portion of the hill known as Nellitope. The Secretary of State claimed to be the

owner of all unoccupied portions of the hill. The Subordinate judge of Madura

decreed in favour of the Plaintiffs (with the exception of the Nellitope, the mosque
83 (1931) 61 Mad LJ 285

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itself and the flights of stairs leading to it). The Mohammedan defendants filed an

appeal and the Secretary of State was directed to be a party to the appeal.

Despite a finding that the Hindus and Mohammedans had rights over the hill, and

without specifying what these rights were, the High Court held that the

Government was the owner of the hill. Around the base of the hill, worshippers

performed the Pradakshinan by a circumambulation of the hill. This path was also

used for processions with the temple car and was known as Ghiri Veedhi. While

the judgment of the High Court noted evidence on record that the hill as a whole

was worshipped by the Hindu community as a Linga, the question at the heart of

the dispute concerned the question of ownership over the unoccupied portions of

the hill within the Ghiri Veedhi. Under Lord Clive‘s treaty with Azim-ul-Dowlah in

1801, Madura came under the control of the East India Company. The High Court

took the view that, post 1801 the entire hill, being part of the village, became

Government property.

143. The Privy Council held that acts of ownership had been exercised

consistently by the temple for the greater part of a century over all unoccupied

portions of the land. Expenses were also incurred for the upkeep of smaller

shrines situated within the Ghiri Veedhi. The temple was held to have been in

possession of the unoccupied portion of the hill from time immemorial which had

been treated by the temple as temple property. The Privy Council held that, save

and except the mosque, there was ―no evidence of expropriation from the

remainder‖ of the hill. Sir George Lowndes held:

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―The only rights which the temple can assert against the
respondent are rights which the East India Company granted
to them or allowed them to retain…and their Lordships think
the evidence shows that the temple was left after 1801 in
undisturbed possession of all that it now claims…Their
Lordships do not doubt that there is a general presumption
that waste lands are the property of the Crown, but they
think that it is not applicable to the facts of the present case
where the alleged waste is, at all events physically,
within a temple enclosure…On the whole their Lordships
are of opinion that the appellant has shown that the
unoccupied portion of the hill has been in the possession of
the temple from time immemorial and has been treated by
the temple authorities as their property.‖
(Emphasis supplied)

A close reading of the judgment makes it evident that the Privy Council was only

concerned with (i) the unoccupied portions of the land and the protection of other

proprietary rights in the hill; and (ii) the ownership of the property by the temple.

The Privy Council was not concerned with the elevation of the hill itself to the

status of a juristic person. There is a distinction between the ownership of the

property by the temple, and the conferral of legal personality on land. Where land

is owned by a person, it cannot be a juristic person, for no person can own a

deity as a juristic person. This case does not further the argument advanced by

the plaintiffs in Suit 5 that the disputed property is itself a juristic person.

Temples governed by statutes

144. In The Board of Commissioners for Hindu Religious Endowments,

Madras v Pidugu Narasimhan92, the Board framed a scheme on the ground that

the institution in question was a temple within the meaning of the Madras Hindu

Religious Endowments Act 1863. The respondent instituted a suit challenging the

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declaration of the institution as a temple under the Act. A Division Bench of the

Madras High Court observed that the institution had been in existence for several

centuries and had over time become a place of worship. The court observed that

the worship must be of sufficient significance to attract public endowments. On an

assessment of the events carried on within the institution, the court concluded

92
1939 1 MLJ 134
that there was, within the institution, public religious worship. The High Court held

that the Board was thus authorized to frame a scheme under the Act. Justice

Varadachariar observed:

―The test is not whether it conforms to any particular school

of Agama Sastra; we think that the question must be decided
with reference to the view of the class of people who take
part in the worship. If they believe in its religious efficacy, in
the sense that by such worship, they are making themselves
the object of the bounty of some superhuman power, it must
be regarded as ―religious worship.‖

145. Mr Parasaran, appearing on behalf of the plaintiffs in Suit 5 argued, on the

basis of this extract, that by performing the parikrama around the disputed site

with the faith and belief that the disputed site is the birth-place of Lord Ram, the

devotees believe that the receive the spiritual benefits of religious worship. This,

it was urged, is adequate for this Court to hold that the land constituting the

second plaintiff is a juristic person. The observations of the Madras High Court in

Pidugu Narasimhan were in the context of assessing whether the performance

of the ceremonies amounted to ―public religious worship‖ in order to determine

whether the institution in question was a temple under the Act. No question arose

of the temple being a juristic person. At best, this case supports the proposition

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put forth by the plaintiffs in Suit 5 that the nature of worship performed at the

disputed site is of a religious nature.

146. Mr Parasaran placed reliance on a decision of the Madras High Court in

TRK Ramaswami Servai v The Board of Commissioners for the Hindu

Religious Endowments, Madras84 to contend that the presence of an idol is a

dispensable requirement with respect to religious worship and that the faith and

belief of the worshippers along with the performance of the parikrama around the

disputed land is sufficient for a court to confer on the disputed site legal

personality. In TRK Ramaswami Servai, a deed of gift was executed declaring

that certain land had been endowed to a temple Devasthanam and that a temple

was under construction. Besides the donor, two trustees were appointed. In

1937, the Hindu Religious Endowments Board demanded a contribution from the

trustees on the assumption that the construction of the temple was complete.

This was resisted by the appellants on the ground that the temple was not

constructed and that no idol had been installed. The temple was nonetheless

declared a temple within the ambit of the Madras Hindu Religious Endowments

Act, 1926. Subsequently, a scheme of management was sought to be framed for

the temple.

147. Among the various issues addressed by the court, one concerned the

existence of a valid temple for the purposes of the Act. The two judges on the

Division Bench differed and the case was then referred to a third Judge. Agreeing

84 ILR 1950 Mad 799

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that there existed a temple for the purposes of the Act, Justice Viswanatha Sastri

held:

―…The Hindu law recognizes the validity of dedications for

the establishment of a deity and the maintenance of its
worship. It is immaterial that the image of the deity has not
been established before a gift or bequest is made for it…The
test is not whether the installation of an idol and the mode of
its worship conform to any particular school of Agama
Sastras. If the public or that section of the public who go for
worship consider that there is a Divine presence in a
particular place and by offering worship at that place, they
are likely to be the recipients of the county or blessings of
God then, you have got the essential features of a temple
as defined in section 9, clause 12, of the Act. The
presence of an idol, though an invariable feature of
Hindu temples, is not a legal requisite under the
definition of a temple in section 9, clause 12, of the Act.‖
(Emphasis supplied)

The observations of the court were made in the context of assessing whether the

presence of an idol was required for the institution to be defined as a temple

under Section 9 of the Madras Hindu Religious Endowments Act, 1926. It was in

this context that the court held that the belief of the devotees that they will be the

recipients of God‘s blessings was sufficient for the institution to be held a temple

under the Act. At best, these observations of the court establish that the belief of

devotees that there is a divine presence is constitutive of a place of public

worship. This however, is distinct from the conferral of juristic personality. An

adjudication that an institution is a temple for the purposes of a statutory

enactment is distinct from the issue as to whether the institution possesses

juristic personality. The observations in this case were made in the specific

context of a statutory definition and cannot be applied to a place a religious

worship for which no statutory enactment exists.

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148. A similar question was adjudicated upon by the High Court of Andhra

Pradesh in Venkataramana Murthi v Sri Rama Mandhiram85, upon which

reliance was placed. In this case, the court was required to assess whether an

idol was a pre-requisite for a place of worship to be a temple within the purview of

the Hindu Religious and Charitable Endowments Act 1951. The court affirmed

that the existence of public religious worship and a dedication is adequate for the

institution to be declared as a temple under the Act, even absent an idol. This

case does not support the case of the plaintiffs in Suit 5.

149. In the decision of this Court in Kamaraju Venkata Krishna Rao v Sub

Collector, Ongole86, upon which significant reliance has been placed, the

question before a three judge Bench was whether a tank can be considered a

charitable institution within the meaning of the Andhra Inams (Abolition and

Conversion into Ryotwari Act) 1956. Who granted the Inam in question was not

known. The appellant sought a declaration that the property comprised in the

Inam be registered in his name. This contention was rejected by the authorities

under the Act on the ground that under the records, the Inam was granted to the

tank itself and the ancestor of the appellant was merely the manager of the

charitable institution, the tank. It was contended by the appellant that even if the

Inam was granted for a charitable purpose, the object of the charity was a tank

which could not be considered a charitable institution. The three judge Bench of

this Court, speaking through Justice KS Hegde held:

―9. From the above discussion, it is seen that under Hindu

Law a tank can be an object of charity and when a dedication
85 (1964) 2 ANWR 457
86 (1969) 1 SCR 624

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is made in favour of a tank, the same is considered as a

charitable institution. It is not necessary for our present
purpose to decide whether that institution can also be
considered as a juristic person. Once we come to the
conclusion that the inam with which we are concerned in this
case was an Inam in favour of the ―uracheruvu‖ (tank) that
tank must be considered as a charitable institution under the
Act.‖ (Emphasis supplied)

This Court was only required to assess whether a tank can be considered a

―charitable institution‖ within the meaning of the Andhra Inams (Abolition and

Conversion into Ryotwari Act) 1956. Hence, it was categorically clarified that

there was no need to advert to whether or not a tank is a juristic person. This

case does not further the arguments urged by the plaintiffs in Suit 5.

Shiromani Gurdwara Prabandhak Committee

150. At this stage, it is necessary to advert to the decision of this Court in

Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass87.

In this case, a two judge Bench held the Guru Granth Sahib to be a juristic

person. Mr Parasaran, learned Senior Counsel appearing on behalf of the

plaintiffs in Suit 5 placed considerable reliance on this decision to contend that

this Court has held physical property simpliciter to be a juristic person. Hence, he

submitted that there is a legal basis in the jurisprudence of this Court to confer

legal personality upon the disputed property. To analyse this contention, it is

necessary to consider the case in some detail.

151. In Shiromani Gurdwara, 56 persons moved a petition under Section 7(1)

of the Sikh Gurdwaras Act 1925 for a declaration that certain disputed

87 (2000) 4 SCC 146

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property was a Sikh Gurdwara. Upon the issuance of a notification to this

effect, objections were raised that the disputed property was a

dharamshala and dera. The Tribunal under the Act dismissed this objection

on the ground that the petitioners therein lacked locus. In the meantime,

the Shiromani Gurdwara Parbandhak Committee88 claimed that the

disputed property was a Sikh Gurdwara and that the ―Guru Granth Sahib‖

was the ―only object of worship and it was the sole owner of the gurdwara

property.‖ The Sikh Gurdwara Tribunal decreed in favour

of the SGPC and held that the disputed property ―belonged to SGPC‖.

152. On the basis of a farman-e-shahi issued in 1921, the Revenue Officer had

ordered mutation in the name of the ―Guru Granth Sahib Barajman

Dharamshala Deh‖. Thus, the ownership column of the land continued in

this name till objections were filed to the declaration of the land as a Sikh

Gurdwara. In the appeals before the High Court from the findings of the

Tribunal, a contention was raised that the entry in the revenue records in

the name of the Guru Granth Sahib was void as it is not a juristic person.

The High Court held that the Guru Granth

Sahib is not a juristic person and consequently, the mutation in the name of the

Guru Granth Sahib was liable to be set aside. It was in this context that this Court

was called to adjudicate whether the Guru Granth Sahib is a juristic person,

capable of owning the disputed property in its own name.

88 ―SGPC‖

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153. Tracing the evolution of the concept of juristic person, Justice AP Misra

noted that recognition in law of a juristic person is to sub-serve the needs

of the law and society. The Court held:

―19…When the donor endows for an idol or for a mosque or

for any institution, it necessitates the creation of a juristic
person.

21…There may be an endowment for a pious or religious

purpose. It may be for an idol, mosque, church, etc. Such
endowed property has to be used for that purpose. The
installation and adoration of an idol or any image by a Hindu
denoting any god is merely a mode through which his faith
and belief is satisfied. This has led to the recognition of an
idol as a juristic person.

27. The aforesaid conspectus visualizes how ―juristic

persons‖ was coined to subserve to the needs of the
society…Different religions of the world have different
nuclei and different institutionalized places for adoration,
with varying conceptual beliefs and faith but all with the
same end.‖
(Emphasis supplied)

Justice Misra further noted:

―29…it is not necessary for ―Guru Granth Sahib‖ to be

declared as a juristic person that it should be equated with an
idol. When belief and faith of two different religions are
different, there is no question of equating one with the other.
If ―Guru Granth Sahib‖ by itself could stand the test of its
being declared as such, it can be declared to be so.‖

―31. Now returning to the question, whether Guru Granth

Sahib could be a ‗juristic person‘ or not, or whether it could
be placed on the same pedestal, we may fist have a glance
as the Sikh religion…In the Sikh religion, the Guru is revered
as the highest reverential person…

33. The last living Guru, Guru Gobind Singh, expressed in

no uncertain terms that henceforth there would not be any
living Guru. The Guru Granth Sahib would be the vibrating
Guru.
He declared that ―henceforth it would be your Guru from
which you will get all your guidance and answer‖. It is with
this faith that it is worshipped like a living Guru. It is with
this faith and conviction, when it is installed in any
gurdwara it becomes a sacred place of worship.

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Sacredness of the gurdwara is only because of placement of

Guru Granth Sahib in it. This reverential recognition of Guru
Granth Sahib also opens the hearts of its followers to pour
their money and wealth for it. It is not that it needs it, but
when it is installed, it grows for its followers, who through
their obeisance to it, sanctify themselves and also for running
the langer which is an inherent part of the gurdwara.

34. … It cannot be equated with an ―idol‖ as idol

worship is contrary to Sikhism. As a concept or a
visionary for obeisance, the two religions are different.
Yes, for its legal recognition as a juristic person, the followers
of both the religions give them respectively the same
reverential value….

42…for all the reason, we do not find any strength in the

reasoning of the High Court in recording a finding that the
―Guru Granth Sahib‖ is not a ―juristic person‖. The said
finding is not sustainable both on fact and law.‖

The view of the learned judge was that the creation of a juristic person was to

ensure the legal protection of the religious beliefs of the faith:

―28. Faith and belief cannot be judged through any judicial

scrutiny. It is a fact accomplished and accepted by its
followers. This faith necessitated the creation of a unit to
be recognised as a ―juristic person‖. All this shows that a
―juristic person‖ is not roped in any defined circle. With the
changing thought, changing needs of the society, fresh
juristic personalities were created from time to time.‖
(Emphasis supplied)

154. What emerges from a nuanced reading of the case is this: First, the case

did not relate to the conferment of juristic personality on immoveable property.

The relevance of this will be considered in the course of this judgement; Second,

as a matter of religion, the tenets of Sikhism are opposed to idol worship. Where

juridical personality was conferred on the idol in Hindu Law as the physical site of

jural relations, the same physical corpus was absent in Sikhism. This Court was

thus required to locate a corpus upon which juridical personality may be

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recognised for it was only consequent to this determination that the court could

decide whether the disputed property vested in the Guru Granth Sahib as a

juridical person. As stated above, necessity is often the basis of conferring

juridical personality. In this case, as it is in the case of the idol in Hindu law, it was

legally expedient to recognise the legal personality of the Guru Granth Sahib as

the corpus upon which juridical personality would be conferred in order to

determine whether the property could vest in the Guru Granth Sahib.

155. The judgment in Shiromani Gurdwara affirms that there is an underlying

purpose which is at the heart of conferring legal personality on objects. Different

religions are assessed in accordance with their own faith and belief. The absence

of idol worship in Sikhism necessitated the conferral of juristic personality on the

Guru Granth Sahib which is, according to the tenets of Sikhism, the Guru.

Accordingly, it was then held that the disputed property vested in the Guru Granth
Sahib.

Thayarammal

156. Lastly, in Thayarammal v Kanakammal89, by way of writings on a stone

inscription, the suit properties were dedicated for use by the public as a

Dharmachatram (choultry) where travellers and pilgrims could take shelter and

be provided with refreshments. The property was ―dedicated to the general

public as a resting place.‖ No trustee was mentioned and the witness to the

dedication was Lord Thyagaraja himself. The plaintiff claimed to be in occupation

of a part of the dedicated property (Schedule A) and alleged that a portion of the
89 (2005) 1 SCC 457

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Schedule B property was encroached upon by the defendants who were liable to

be evicted. The defendants contested the suit on the ground that they had

acquired title to the portion of the property by way of a purchase made in a court

sale conducted in the course of executing a compromise decree. The High Court

concluded that the compromise decree was collusive and that the plaintiff also

had no right as an assumed trustee. Accordingly, the Administrator General under

the Official Trustees Act 1913 was directed to take over the management of the

Trust. The principle question before this Court was whether a trust or charitable

endowment had been created.

157. The Court analysed the stone inscription and held that the suit property

was dedicated for charitable purposes, and it could not be claimed by the plaintiff

as a trustee or the defendant as an owner. However, in the course of the

judgment, Justice DM Dharmadhikari speaking for the Court held:

―16. A religious endowment does not create title in respect

of the property dedicated in anybody‘s favour. A property
dedicated for religious or charitable purpose for which the
owner of the property or the donor has indicated no
administrator or manager becomes res nullius which the
learned author in the book (supra) explains as property
belonging to nobody. Such a property dedicated for general
public use is itself raised to the category of a juristic person.
Learned author at p. 35 of his commentary explains how
such a property vests in the person itself as a juristic
person….The idea is the same, namely, when property is
dedicated for a particular purpose, the property itself upon
which the purpose is impressed, is raised to the category of a
juristic person so that the property which is dedicated would
vest in the person so created.‖

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A close reading of the decision shows that the principle contention urged in the

case was that the property described as a Dharmachatram is covered under

Section 6(5) of the Tamil Nadu Hindu Religious and Charitable Endowments Act

1959 as a ―charitable endowment‖. This Court held that the dedication of

property for a Dharmachatram, is in the strict legal sense, neither a gift nor a

trust. This Court held that the property which was dedicated for a charitable

purpose could not be claimed by the plaintiff as a trustee or the defendant as

owner. With this finding, the Court was of the view that it was the Tamil Nadu

Hindu and Charitable Endowments Act 1959 which governs the matter and

accordingly the suit property shall be taken in control for administration,

management and maintenance by the State Government and the Commissioner

under the 1959

Act.

158. In assessing the position of the religious charitable institution, this Court

made certain observations in para 16 upon which reliance has been placed. The

Court proceeded on the premise that the suit property had been dedicated for a

specific purpose and could not be owned by the defendant. This was to ensure

the protection of the purpose with which the suit property was dedicated.

Significantly, the deed of dedication did not identify a manager for the endowed

property and the court sought to protect the property by conferring legal

personality on the intention behind the endowment. Though the Court assessed

the position of law on the basis of the theoretical framework analysed above, the

observations extracted above seem to suggest that property itself was elevated

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to the status of a juristic person. On an overall reading of the case as well as the

theoretical exposition which has been adverted to, the observations made have

to be read in the light of protecting the purpose behind the endowment and not to

suggest that the property itself was conferred legal personality.

Dedication of properties

159. The cases referred to Mr C S Vaidyanathan pertained to the consequence

of conferring legal personality by this Court on the disputed land. Far from

assisting the contention urged on behalf of the plaintiffs in Suit 5, that the second

plaintiff is a juristic person, the cases adverted to above affirm that the practice of

conferring legal personality on Hindu idols was evolved by courts to ensure that

the law adequately protected the properties endowed to religious purposes. As a

large number of endowments were made to specific idols, courts located the idol

as a nucleus in which the rights, powers, privileges and immunities of the

endowment would vest. Legal personality was conferred to serve the very

specific public interest of protecting properties so endowed and creating a centre

of jural relations. Necessity mandated the creation and recognition of an entity in

law, allowing courts to regulate the legal relations between natural persons and

the idol and consequently the properties vested in the idol. These cases will be

adverted to in the event the court determines that the second plaintiff is a juristic

person.

Faith and belief

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160. The decisions and their observations which have been adverted to are

premised on the existence of a positive act of dedication or donation. It is

pertinent to note that plaintiffs‘ claim for the conferment of juristic personality on

the land that is the disputed site is not based on an express dedication. It was

urged that the spot under the central dome where the idols are placed is the

birthplace of Lord Ram. The faith and belief of the worshippers is of paramount

importance. Hindus perform the parikrama around the disputed site with the faith

and belief that it marks the birth-place of Lord Ram. It has thus been argued that

‗Asthan Shri Ram Janam Bhumi‘, as a place of religious worship must

consequently be elevated to the status of a juristic person by virtue of the faith

and belief of the worshippers. It was contended that the presence of an idol is

dispensable in Hinduism, this contemplates a situation such as in the case before

us, where the land is itself worshipped as a deity. Devotees pray to the land as

the birth-place of Lord Ram, and consequently, the second plaintiff should, it is

urged, be recognised as a juristic person.

161. The argument which has been urged on behalf of the plaintiff in Suit 5 is

materially different from the case for conferment legal personality on a Hindu

endowment. In the case of an endowment, courts have recognised the charitable

or religious purpose situated in the institution as a basis for conferring juristic

personality on the institution. In doing so, the court recognises the pious purpose

of the founder or testator to protect the properties so endowed. However, it is not

the case of the plaintiffs in Suit 5 that the property styled as the second plaintiff is

debutter property. Rather, by invoking the argument of a ―juristic person‖, the

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plaintiffs have urged this Court to create an additional ground for the conferral of

legal personality – the faith and belief of the devotees. Amongst the ensemble of

arguments advanced before this Court, this innovative legal claim is at the heart

of the present dispute.

162. The first difficulty that arises in accepting the contention urged by the

plaintiffs in Suit 5 stems from the very practical question of how such immovable

property is to be delineated. Unlike the case of endowed properties that are

delineated in the instrument or deed of endowment itself, where legal personality

is sought to be conferred on the basis of faith and belief of the devotees, the

devotees themselves may not agree on the exact contours of this property. The

question of delineation weighed on the mind of Justice Sudhir Agarwal who

stated:

―1887. What would be the meaning of word ―place‖

and what should be its extent? Whether it would be a small
place which normally is required for birth of a human being or
whether it will cover an area of the entire room, house,
locality, city or sometimes one can say even more that that.
We know that Hindus worship rivers and lakes like
Ganga, Yamuna, Narmada, Mansarovar etc. They are
very sacred and pious. At several places a number of
temples etc. on the bank or near the said rivers have
been constructed. The very origin of such sacred rivers
is also a place of worship for Hindus like Gangotri,
Yamunotri (state of Uttaranchal) and Amarkantak (for
river Narmada). Can it be said that the entire length these
rivers cover would constitute and satisfy the
requirement of a ―juristic personality‖. It is not out of
place that at several places, the temple of Ganga, Narmada,
Yamuna, etc. have been constructed and they are religious
endowments in their own rights, enjoy all such legal rights
and obligations, etc as are available to such endowments.
Similarly certain hills or mountain or hilly terrains as such are
treated to be places of worship like, Kailash, Gobardhan,
Kamathgiri etc.‖
(Emphasis supplied)

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Parikrama

163. Despite these difficulties, the learned judge concluded that ‗Asthan Sri

Ram Janam Bhumi‘ was a juristic person. It was urged before us that it is not the

entirety of Ayodhya that is the juristic person, but only the disputed property.

When a question was raised by the Bench as to the physical boundaries of the

alleged juristic person, it was urged that the performance of the parikrama

(circumambulation) around the disputed property delineated the property which

was worshipped as the Janmasthan and it is this property, being divine, upon

which the status of a juristic person must be conferred. In this view, the

parikrama served to mark the boundaries of the juristic person. On the other

hand, Dr Dhavan urged that the parikrama is merely a form of worship and not a

method of delineating the boundaries of a property.

164. The parikrama may be performed around a small idol, shrine, temple or

land in which the temple is situated. However, its principle purpose is to offer

worship to the divine and it is performed with the belief that the parikrama would

result in the performer being the recipient of some spiritual benefit. The

parikrama is not performed in order to mark the exact boundaries of the property

to which juristic personality is conferred. The performance of the parikrama,

which is a form of worship conducted as a matter of faith and belief cannot be

claimed as the basis of an entitlement in law to a proprietary claim over property.

Ram Jankijee Deities

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165. The counsel for the plaintiffs in Suit 5 relied on the observations by this

Court in Ram Jankijee Deities v State of Bihar90 to contend that the manner of

consecrating a deity is subjective and based on the determination of the

devotees. It was submitted that any method of consecration chosen by the

devotees is adequate for the conferral of legal personality on the deity. In that

case, the question before the court concerned whether the consecration of a

deity with a visible image by the performance of appropriate ceremonies led to

the establishment of a valid deity upon which juridical personality could be

conferred ―for the purpose of the Bihar Land Reforms (Fixation of Ceiling Area

and Acquisition of Surplus Land) Act 1961‖. Two deeds of dedication were

executed – one to the deity, Ram Jankijee and the other to the deity, Thakur

Raja. Both deities, recognised as distinct entities, were given separate properties

and put in possession through the shebaits. Both deities were located in separate

temples within the dedicated property.

166. The Deputy Collector, for the purposes of the fixation of ceiling area,

allowed two land units to the deities on the ground that there are separate deities

to which the land was gifted. The Collector disagreed and allowed a single unit

on the ground that the entire property held by both deities was to be managed by

a committee formed under the Religious Trust Board and there was no evidence

on the property donated to the deities being treated differently. This Court sought

to answer whether the two deities were separate and distinct legal entities. It is

pertinent to note that the Single Judge of the High Court held that the image of

90 (1999) 5 SCC 50

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the deity styled as Thakur Raja (or Raja Rani) was not known to Hindu scriptures

and hence, there is no second deity to which a separate dedication could be

made. It is in this context that this Court observed, speaking through Justice

Umesh Banerjee:

―14. Images according to Hindu authorities are of two kinds:

the first is known as swayambhu or self-existent or
selfrevealed, while the other is pratisthita or established. The
Padma Purana says: ―The image of Hari (God) prepared of
stone, earth, wood, metal or the like and established
according to the rites laid down in the Vedas, Smritis and
Tantras is called the established images … where the
selfpossessed Vishnu has placed himself on earth in stone or
wood for the benefit of mankind, that is styled the
selfrevealed.‖ (B.K. Mukherjea — Hindu Law of Religious and
Charitable Trusts, 5th Edn.) A swayambhu or self-revealed
image is a product of nature and it is anadi or without any
beginning and the worshippers simply discover its existence
and such images do not require consecration or pratistha but
a man-made image requires consecration. This man-made
image may be painted on a wall or canvas. The Salgram Shila
depicts Narayana being the Lord of the Lords and represents
Vishnu Bhagwan. It is a shila — the shalagram form partaking
the form of Lord of the Lords, Narayana and
Vishnu.‖

The Court then surveyed precedent to hold that while an idol is usually

consecrated in a temple, it does not appear to be an essential condition. The

Court held:

―16…If the people believe in the temples' religious efficacy

no other requirement exists as regards other areas and the
learned Judge it seems has completely overlooked this
aspect of the Hindu Shastras — in any event, Hindus have in
the Shastras ―Agni‖ Devta, ―Vayu‖ Devta — these deities
are shapeless and formless but for every ritual Hindus offer
their oblations before the deity. The ahuti to the deity is the
ultimate — the learned Single Judge however was pleased
not to put any reliance thereon. It is not a particular image
which is a juridical person but it is a particular bent of mind
which consecrates the image.‖

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167. All the cases relied on by the Court pertain to the requisites of a temple

under various statutes or what constitutes a place of religious worship. The

observations of the Court form the basis of locating the centre of worship, which

according to it does not need to have a fixed image and is based on the faith and

belief of the worshippers. The observations of the Court were in the context of

determining whether a valid deity existed to whom a dedication could be made.

The question whether the second deity was a distinct legal person arose due to

the need to determine the validity of the deed of dedication in favour of the

second deity constituting a separate unit for the purposes of the Bihar Land

Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961. It is

only consequent to the establishment of a valid deity that the dedicated property

would vest in the established deity in the ideal sense.

168. It cannot be said that the observations of the court in respect of the

consecration or establishment of a valid deity apply with equal force to the

conferral of juristic personality on property on the basis of the faith and belief of

the devotees. The rationale underlying the approach adopted by this Court is

clarified in the following observations:

―17. One cardinal principle underlying idol worship

ought to be borne in mind
―that whichever God the devotee might choose for
purposes of worship and whatever image he might set up
and consecrate with that object, the image represents
the Supreme God and none else. There is no
superiority or inferiority amongst the different Gods. Siva,
Vishnu, Ganapati or Surya is extolled, each in its turn as
the creator, preserver and supreme lord of the universe.
The image simply gives a name and form to the
formless God and the orthodox Hindu idea is that

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conception of form is only for the benefit of the

worshipper and nothing else‖.
(B.K. Mukherjea — Hindu Law of Religious and Charitable
Trusts, 5th Edn.)‖ (Emphasis supplied)

The observations in Ram Jankijee Deities were made in the specific context of

consecrating an image based on the faith and belief of devotees for the

establishment of a deity to which valid dedications may be made. The

observations in this case establish that the existence of a valid deity was not to

be tested against Hindu Shastras but on the basis of the faith and belief of the

devotees. Once the faith and belief of the devotees had been established, it was

an express deed of dedication that resulted in the conferral of juridical personality

on the idol. The observations in this case cannot be equated to the elevation of

property itself as a juristic person.

169. The court in that case was concerned with whether a specific image of a

deity must be tested against Hindu scriptures and it is in this context that the

court held that divinity is ―formless, shapeless but it is the human concept of a

particular divine existence which gives it the shape, the size and the colour.‖

There is no express deed of dedication in the present case. The case of Ram

Jankijee Deities is not an authority for the proposition that the mere faith and

belief of the devotees is sufficient for the conferral of juristic personality. While it

was adequate for the existence of a place of religious worship, it was on the basis

of a deed of dedication that juristic personality was conferred.

The sacred hill

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170. In Sir Seth Hukum Chand v Maharaj Bahadur Singh91, the dispute

concerned two sects of the Jain community with regard to the rights of worship of

a hill of 25 square miles to which religious significance was attached. According

to the Digambaras, the sacred nature of the hill demanded that the moment they

set foot on the hill, they must abstain from any offence against nature, even

spitting. Though this is observed by the Swetambaris as well, the Digambaras

adopted a position that any course of action which is inconsistent with their

worship, such as the regular and continuous employment of human beings on the

hill involves a desecration of the hill.

171. In 1918, the Swetambaris acquired, by purchase, the proprietary rights to

the hill from the Raja of Palgunj. Thereafter, sentries and night watchmen were

posted on the hill which was accompanied by the construction of dwelling units

for them and for other pujaris. The Digambaris contended that the proposed

construction of a gate at the foot of the hill was intended to obstruct their access

to the hill. A suit was instituted contending that the hill was an object of worship

for both sects and on account of its special status, no construction would take

place on it. The trial judge held that the plaintiff Digambaris were entitled to

ensure that the hill, as endowed property of the deities, is kept in an immaculate

condition in accordance with their faith. The High Court reversed this judgment

and held that the hill was not debutter property but the property of the Raja of

Palgunj, whose title was transferred. Further, the proposed construction of the
gate was held not to obstruct the right of worship of the Digambaris.

91 (1933) 38 LW 306 (PC)

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172. In appeal, the Privy Council examined the evidence on record to conclude

that legal title had vested validly in the Raja. The result of previous litigation

between the Raja and the Swetambaris had concluded title in favour of the Raja.

A suit by the Digambaris in 1903 also admitted the title of the Raja subject to their

right to worship. The Privy Council then examined the range of activities that

were carried out on the hill without a disruption of the right to worship, and held

that it was not proved that any of the acts complained of, barring the placing of

the Charans in the three shrines, in the plaint abridged the right to worship.

173. The trial judge concluded that the hill was debutter property of the deities

entirely on the belief of its sanctity. Taking exception to these observations, the

Privy Council held:

―The Subordinate Judge has based his finding that the
whole hill is the debutter property of the jain deities on the
belief in its sanctity now entertained by both sects. As
observed by Ross, J., that evidence undoubtedly
establishes beyond a doubt that in the belief of the Jain
community a spiritual quality in some way attaches to the
hill, but this is a matter of faith and cannot in itself
determine the physical ownership of the hill.‖
(Emphasis supplied)

The Privy Council explicitly rejected the contention urged by the Digambaris of a

proprietary claim which was based on the faith and belief of the sect.

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The consequence of absolute title

174. In the present case, the recognition of ‗Asthan Sri Ram Janam Bhumi‘ as

a juristic person would result in the extinguishment of all competing proprietary

claims to the land in question. This conferral of ‗absolute title‘ (resulting from the

conferral of legal personality on land) would in truth render the very concept of

title meaningless. Moreover, the extinguishing of competing claims would arise

not by virtue of settled legal principles, but purely on the basis of the faith and

belief of the devotees. This cannot be countenanced in law. The conferral of legal

personality by courts is an innovation arising out of necessity and convenience.

The conferral of legal personality on Hindu idols arose due to the fundamental

question of who the property was dedicated to and in whom the dedicated land

vested. The two clear interests that the law necessitated protection of were the

interests of the devotees and the protection of the properties from

mismanagement. In the present case, there exists no act of dedication and

therefore the question of whom the property was dedicated to does not arise and

consequently the need to recognise the pious purpose behind the dedication

itself as a legal person also does not arise.

The Swayambhu argument

175. It is pertinent to note that in reply, Mr Parasaran advanced a slightly

different argument. The initial argument advanced on behalf of the plaintiffs in

Suit 5 was that the performance of worship at the disputed site with the faith and

belief that the place is the birth-place of Lord Ram is sufficient for this Court to

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confer on the disputed site juristic personality. The argument advanced in reply

was that the land is a Swayambhu deity (i.e. self-manifested deity). Mr Parasaran

contended that an idol is not necessary in Hinduism for the performance of

worship. It was contended that the idol is sacred as a symbol of the divinity,

however all worship is done to the one indivisible Supreme Being. The multitude

of idols and deities merely constitute different facets of the Supreme Being.

Hence, the law must recognize whatever form in which God manifests. It was

contended that the second plaintiff was a deity that ‗manifested itself in the land‘

and therefore the juristic personality of Ram Janmabhumi vested in the

immovable property of the disputed site. In Mr Parasaran‘s submission, worship

at the disputed site was not offered only to Lord Ram but the very land on which

Lord Ram is said to have been born. Reliance in this regard was placed on the

existence of several temples where worship was performed despite the absence

an idol – most notably at the Chidambaram temple in Tamil Nadu.

176. To establish the legal personality of the second plaintiff, Mr Parasaran

urged that as the Ram Janmabhumi is a ‗Swayambhu‘ deity, no dedication or

consecration is required for the court to recognise its juristic personality. It was

contended that the deity, by its very nature necessitated the performance of a

parikrama around it, which also delineated the boundaries of the property upon

which juristic personality must be conferred. Mr Parasaran contended that the

conferral of juristic personality sub-served the need to protect the land itself from

being encroached on or alienated. The land is believed to be the birth-place and

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is treated reverentially by Hindus who have sought to offer worship there. As a

consequence, legal personality must be conferred on the land for its protection.

To support these submissions, Mr Parasaran relied on the following authorities:

Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP92, Ram

Jankijee Deities v State of Bihar93, Yogendra Nath Naskar v CIT, Calcutta94,

Bhupati Nath95, Manohar Ganesh Tambekar v Lakhmiram Govindram96,

Guruvayur Devaswom Managing Committee v C K Rajan97, Sri

Sabhanayagar Temple, Chidambaram v State of Tamil Nadu107, Pinchai v

Commissioner, Hindu Religious and Charitable Endowments Board 9899,

Saraswathi Ammal v Rajagopal Ammal109; Kamaraju Venkata Krishna Rao v

Sub Collector100, Thayarammal v Kanakammal101, Shiromani Gurdwara

Prabandhak Committee, Amritsar v Som Nath Dass102 and Sapneshwar

Pujapanda v Ratnakar Mahapatra103.

177. Dr Dhavan briefly interjected to contend that though Hinduism may

recognise a Swayambhu deity, all such instances are characterised by the

existence of a physical manifestation. Except the faith and belief of the

92 (1997) 4 SCC 606

93 (1999) 5 SCC 50
94 (1969) 1 SCC 555
95 ILR (1909) 37 Cal 128
96 ILR 1888 12 Bom 247
97 (2003) 7 SCC 546
107
(2009) 4 CTC 801
98 AIR 1971 Mad 405
99 SCR 277
100 (1969) 1 SCR 624
101 (2005) 1 SCC 457
102 (2000) 4 SCC 146
103 AIR 1916 Pat 146

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devotees, no physical manifestation has been forthcoming to separate the

disputed site from any other land simpliciter.

178. In Mr Parasaran‘s view, even absent any distinguishing feature on the

disputed site to evidence the manifestation of divinity, the faith and belief of

the devotees is sufficient to recognise that the disputed site is a

Swayambhu deity. At the heart of the revised argument raised by Mr

Parasaran is that the faith and belief of the devotees alone is sufficient for

this Court to recognise the disputed site as a Swayambhu deity and

consequently confer upon it legal personality. To this extent, the contention

urged by Mr Parasaran in his reply converges with the earlier argument on

faith and belief as the sole basis on which juristic personality must be

conferred. In both submissions advanced by the plaintiffs in Suit 5, the faith

and belief of the devotees is claimed to be the sole basis for the conferral

of juristic personality. The contentions on faith and belief have already

been analysed above. However, the argument urged that the disputed land

is a Swayambhu deity raises additional issues outside the realm of the

Hindu Law of endowments. It is to these issues that it is necessary now to

turn.

179. Given the range of arguments advanced by the plaintiffs in Suit 5, it is

necessary to first advert to the cases relied on in reply. The observations

relied on have been selectively extracted and once the context in which the

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observations were made are fully understood, they do not advance the

argument set out by Mr Parasaran.

180. Reliance was placed on Guruvayoor Devaswom Managing Committee v

C K Rajan104 to contend that a temple itself is a juristic entity. The dispute

concerned the mismanagement of temple affairs by the Devaswom

Committee. A three judge Bench of this Court held that devotees could

approach a High Court or the Supreme Court by way of public interest

litigation where their fundamental rights under Article 25 and 26 of the

Constitution were violated by action or inaction on behalf of the state

authorities. The only reference to a temple being a juristic person is

recorded at paragraph 40 of the judgement. Justice S B Sinha noted:

―40. … A proceeding initiated as a public interest litigation

would lie before the High Court or this Court, according to
Mr Subba Rao, where it was found that despite existence of
statutory provisions the State or the other statutory
functionaries were not taking recourse to the provisions
thereof for remedying the grievances of the devotees. In any
event, as a Hindu temple is a juristic person the very fact
that Section 92 of the Code of Civil Procedure seeks to
protect the same for the same purpose Article 226 and 32
could also be taken recourse to. Our attention in this
behalf has been drawn to Yogendra Nath v. CIT and
Manohar Ganesh Tambekar v. Lakhmiram Govindram.‖
(Emphasis supplied)

The observation that a temple is a juristic person formed a part of the

submissions made by the counsel and was merely preserved by the court as a

matter of record. There is no evidence that this Court accepted the contention

that the temple is a juristic person. No reliance can be placed on this decision or

the observation in paragraph 40 to contend that a temple is a juristic person.

104 (2003) 7 SCC 546

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181. Mr Parasaran next relied on Sri Sabhanayagar Temple, Chidambaram v

State of Tamil Nadu105 to demonstrate the recorded existence of a temple

without any resident idol. The decision records a brief history of the

Chidambaram Temple in Tamil Nadu. Justice T Raja, speaking for a

Division

Bench of the Madras High Court notes:

―…The Chidambaram Temple contains an altar which has
no idol. In fact, no Lingam exists but a curtain is hung before
a wall, when people go to worship, the curtain is withdrawn to
see the ‗Lingam‘. But the ardent devotee will feel the divinely
wonder that Lord Siva is formless i.e., space which is known
as ―Akasa Lingam‖. Offerings are made before the curtain.
This form of worshipping space is called the ―Chidambara
rahasyam‖, i.e. the secret of Chidambaram.‖

The decision supports Mr Parasaran‘s argument that there can exist a temple

without an idol. An idol is one manifestation of the divine and it cannot be said

that absent an idol, there exists no divinity to which prayer may be offered.

However, the question before the Madras High Court was whether the appellant

and his predecessors were the founders of the temple and whether it was a

denominational temple for the purposes of state regulation of the temple‘s secular

affairs. The High Court did not consider whether a temple could be a juristic

person and the decision does not support Mr Parasaran‘s contention that the

mere worship of empty land or ‗space‘, absent a physical manifestation could

confer juristic personality. Moreover, the facts of the case are materially different

from the present case as the Chidambaram Temple is a physical structure built

around a specific spot that is considered holy. Despite the absence of an idol, the

105 (2009) 4 CTC 801

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temple serves as the physical manifestation of the deity and demonstrates the

institutional nature of the worship. This is in contrast to the present case. Worship

is offered to the idol of Lord Ram. The disputed site is a site of religious

significance, but that itself is not sufficient to confer juridical personality on the

land.

182. Reliance was also placed on Pichal alias Chockalingam Pillai v The

Commissioner for Hindu Religions and Charitable Endowments

(Administrations Department) Madras106 to contend that a temple continues to

be recognised as a site of public religious worship even absent the presence of

an idol. The case concerned the Kalyansundareswarar temple in Avaniyapuram.

In the early twentieth century, one Chockalingam Pillai executed a deed of

dedication for the construction, installation and continued upkeep for four idols,

including Sri Kalyansundareswar. Chockalingam Pillai died in 1926 and by virtue

of a compromise deed in 1954 the appellants before the Madras High Court

came to be the managing trustees. The appellants were accused of failing in their

upkeep and service of the idol and the Commissioner of Hindu Religions and

Charitable Endowments framed a scheme to take over management of the

temple. The appellants challenged the competence of the Commissioner on the

ground that the temple was not a temple under Section 6(20) of the Madras

Hindu Religious and Charitable Endowments Act 1959. The primary contention of

the appellants was that the idols in the Kalyansundareswarar temple had not

been duly installed and consecrated. Justice K Reddy speaking for the Division

106 AIR 1971 Mad 405

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Bench of the Madras High Court held that the existence of an idol was not

necessary for a place of public worship to be a ―temple‖ under Section 6(20) of

the said Act. He further observed:

―… It does not appear that the aforesaid idols in the said
temples have been installed and consecrated according to
the rituals and ceremonies enjoined by Agama Sastras. They
have become places of public religious worship by long use
of the place as such by the Hindu community. We are,
therefore, of the view that the installation and consecration of
idols with ceremonies like Prana pratishta etc, prescribed by
Hindu Sastras is not the sine qua non for public religious
worship. In any event, it is not a legal requisite under the
definition of a
‗temple‘ in the Act…‖

Two points must be noted: First, the observations of the Court are made in the

context of satisfying a pre-existing statutory definition of a ‗temple‘. It is in this

context, that the Madras High Court notes that the existence of an idol is not a

pre-requisite to satisfy the statutory definition of a temple. Second, the case does

not discuss the question whether a temple, even absent an idol, can be a juristic

person. It is pertinent to note that absent an idol, the temple itself had existed for

several years. In light of these observations, the decision does not support Mr

Parasaran‘s argument that absent an idol or any express form of manifestation or

recognition, land can constitute a juristic person.

183. Mr Parasaran relied on the decision in Saraswathi Ammal v Rajagopal

Ammal117 to argue that the widespread belief and worship of the land styled as

Ram Janmbhumi is sufficient to recognise it as a juristic person. The case

concerned a settlement deed whereby a widow dedicated in perpetuity the

revenue of certain immovable properties for the performance of daily puja and

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‗Gurupuja‘ of her former husband‘s tomb. It was urged by the appellants in the

case that the dedication was for the performance of puja and an annual ‗sradh‘

on a significant scale, and the dedication was thus for a religious and charitable

purpose. In rejecting this contention, Justice B Jagannadhadas, speaking for a

three judge Bench of this Court observed:

―6…To the extent, therefore, that any purpose is claimed to

be a valid one for perpetual dedication on the ground of

117
1954 SCR 277
religious merit though lacking in public benefit, it must be
shown to have a Shastric basis so far as Hindus are
concerned. No doubt since then other religious practices and
beliefs may have grown up and obtained recognition from
certain classes, as constituting purposes conducive of
religious merit. If such beliefs are to be accepted by courts as
being sufficient for valid perpetual dedication of property
therefor without the lement of actual or presumed public
benefit it must be at least shown that they have obtained
wide recognition and constitute the religious practice of a
substantial and large class of persons. That is a question
which does not arise for direct decision in this case. But
it cannot be maintained that the belief in this belief of
one or more individuals is sufficient to enable them to
make a valid settlement permanently tying up property.
The heads of religious purposes determined by belief in
acquisition of religious merit cannot be allowed to be
widely enlarged consistently with public policy and
needs of modern society.‖ (Emphasis supplied)

The above decision deals with whether a substantial and widespread practice of

a large number of Hindus would warrant its recognition as a religious or

charitable practice. Further, the court expressly observes it was not necessary to

answer this question as the ground of public policy is sufficient to discredit the

practice of tomb-worship by a few stray individuals. It does not deal with the

question when a court should confer juristic personality, either on an idol or on

land. While a particular practice may or may not be recognised by a court as

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―religious‖ or ―charitable‖ depending on the scale of adoption of the practice, a

parallel cannot be drawn with the concept of juristic person which operates in an

entirely different field of law. The decision does not support the contention that

widespread belief in the religious nature of a site is sufficient to confer upon that

site legal personality.

Lastly Mr Parasaran sought to rely on two decisions, Sapneswar Pujapanda v

Ratkanar Mahapatra107 and Sri Adi Visheshwara of Kashi Vishwanath Temple

v State of UP108 to contend that the second plaintiff in Suit 5 is a ‗Swayambhu‘

deity which has a recognised legal personality. The decisions merely note that

Hinduism recognises the concept of a Swayambhu deity, which is not contested

by either of the parties to the present dispute. Neither decision advances the

argument set out by Mr Parasaran. The substantive content of the arguments

advanced by the plaintiffs in Suit 5 is dealt with next.

184. Mr Parasaran submitted that the various deities and idols in Hinduism are

merely facets of the single indivisible God. It was thus contended that

every manifestation of the indivisible God is worthy of legal protection and

the conferment of legal personality.

185. This Court in Yogendra Nath Naskar v CIT, Calcutta109 drew a distinction

between the perception of the devotee that the idol is a manifestation of

the Supreme Being and the position in law that legal personality is

107 AIR 1916 Pat 146

108 (1997) 4 SCC 606
109 (1969) 1 SCC 555

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conferred on the pious purpose of the testator that is entitled to legal

protection. Hinduism is an expansive religion that believes divinity in the

form of the Supreme Being is present in every aspect of creation. The

worship of God in Hinduism is not limited to temples or idols but often

extends to natural formations, animals and can even extend to everyday

objects which have significance in a worshipper‘s life. As a matter of

religion, every manifestation of the Supreme Being is divine and worthy of

worship. However, as a matter of law, every manifestation of the Supreme

Being is not a legal person. Legal personality is an innovation arising out of

legal necessity and the need for adjudicative utility. Each conferment of

legal personality absent an express deed of dedication must be judged on

the facts of the case and it is not a sound proposition in law to state that

every manifestation of the Supreme Being results in the creation of a legal

person.

186. In the present case, it was contended that the land forming the disputed

site is itself the manifestation of Lord Ram. Significant reliance was placed

on the existence of certain temples which do not possess idols, in

particular the Chidambaram temple in Tamil Nadu, to advance two legal

propositions: First, that a Hindu deity possessing juristic personality could

exist even absent an idol, and second that unadorned land, absent any

distinguishing features, could constitute a Swayambhu deity and

consequently a juristic person. As noted above, the cases relied upon by

Mr Parasaran with respect to the Chidambaram and Kalyansundareswar

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temple do not refer to the conferral of juristic personality. However, it is true

than an idol is not a pre-requisite for the existence of a juristic person.

Where there exists an express deed of dedication, the legal personality

vests in the pious purpose of the founder. The idol is the material

embodiment of the pious purpose and is the site of jural relations. There

are instances of the submergence or even destruction of the idol inspite of

which it has been held that the legal personality continues to subsist. Even

if a testator were to make a dedication to a religious purpose but the idol

did not exist at the time the dedication was made or the manifestation of

the divine was not in the form of the idol, but in the form of some other

object of religious significance, the legal personality would continue to vest

in the pious purpose of the dedication itself. However, that is not the

situation in the present case. In the case of the second plaintiff in Suit 5,

there exists no express deed of dedication.

187. It is true that merely because the second plaintiff is not an idol, and there

exists no deed of dedication, it is not precluded from being conferred with

legal personality. Swayambhu deities, by the very fact that they are

manifested from nature, may not fit the description of an idol in the

traditional sense. Courts are not barred from recognising such a material

manifestation of the divine as a juristic person. The manifestation in a

material form is what is the defining feature. In the present case however,

the arguments advanced in reply on behalf of the plaintiffs in Suit 5 rest on

a two-fold claim: First, that no material manifestation is required for the

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conferral of juristic personality in the case of a Swayambhu deity. In this

view, the performance of worship with the faith and belief that corporeal

property represents the divine is adequate for the conferral of juristic

personality. Second, in the alternative, assuming that a material

manifestation is a pre-requisite for a Swayambhu deity, the land at the

disputed site represents the material manifestation and given the

performance of religious worship, no further evidence is required for the

conferral of juristic personality. Several examples of temples without idols

were placed before this court, including that of the Chidambaram Temple

to contend that the deity of Ram had manifested itself in the form of land

itself. According to the plaintiffs in Suit 5, the birth of Lord Ram at the

disputed site is the revelation, and the resident deity of Ram Janmabhumi

manifests itself in the form of the land that it is the disputed land. At the

Chidambaram Temple, there exists no idol of the resident deity, Lord Siva.

A curtain exists at the altar. At the time of worship, the curtain is drawn

away and the altar is revealed to have an empty space. The empty space

at the altar is the subject of the prayers and devotees regularly leave

offerings at the altar. Mr Parasaran sought to draw a parallel to

demonstrate how empty space itself, absent any idol or distinguishing

features, was the subject of worship and constituted a valid deity upon

which juristic personality could be conferred.

188. The arguments urged by Mr Parasaran in his reply raise three questions

for our determination: First, whether a Swayambhu deity may be

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recognised absent a physical manifestation; second, whether land can

constitute a manifestation of the deity; and third, whether legal personality

can be conferred on immovable property per se.

189. A Swayambhu deity is a manifestation of God that is ‗self-revealed‘ or

‗discovered as existing‘ as opposed to a traditional idol that is hand-crafted and

consecrated by the prana pratishta ceremony. The word ‗swayam‘ means ‗self‘

or ‗on its own‘, ‗bhu‘ means ‗to take birth‘. A Swayambhu deity is one which has

manifested itself in nature without human craftsmanship. Common examples of

these deities are where a tree grows in the shape of a Hindu God or Goddess or

where a natural formation such as ice or rock takes the form of a recognised

Hindu deity.

190. Dr Dhavan contended that any case of Swayambhu deity would

necessarily need to be based on: (i) some evidence of the manifestation of God

in a material form followed by; (ii) faith and belief that a particular piece of

corporeal property represents the divine; and (iii) in the absence of traditional

prana parishta ceremonies of consecration, some institutionalised worship

constituting recognition by the religion itself that the manifestation was a deity. In

this view, a Swayambhu deity is premised on faith and belief coupled with a

physical manifestation and religious recognition.

191. A Swayambhu deity is the revelation of God in a material form which is

subsequently worshipped by devotees. The recognition of a Swayambhu

deity is based on the notion that God is omnipotent and may manifest in

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some physical form. This manifestation is worshipped as the embodiment

of divinity. In all these cases, the very attribution of divinity is premised on

the manifestation of the deity in a material form. Undoubtedly, a deity may

exist without a physical manifestation, example of this being the worship

offered to the Sun and the Wind. But a Swayambhu is premised on the

physical manifestation of the Divine to which faith and belief attaches.

192. The difficulty that arises in the present case is that the Swayambhu deity

seeking recognition before this Court is not in the form ordinarily

associated with the pantheon of anthropomorphised Hindu Gods. The

plaintiffs in Suit 5 have sought to locate the disputed land as a focal point

by contending that the very land itself is the manifestation of the deity and

that the devotees‘ worship not only the idols of Lord Ram, but the very land

itself. The land does not contain any material manifestation of the resident

deity Lord Ram. Absent the faith and belief of the devotees, the land holds

no distinguishing features that could be recognised by this court as

evidence of a manifestation of God at the disputed site. It is true that in

matters of faith and belief, the absence of evidence may not be evidence

of absence. However, absent a manifestation, recognising the land as a

self-manifested deity would open the floodgates for parties to contend that

ordinary land which was witness to some event of religious significance

associated with the human incarnation of a deity (e.g. the site of marriage,

or the ascent to a heavenly abode) is in fact a Swayambhu deity

manifested in the form of land. If the argument urged by Mr Parasaran that

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there is no requirement of a physical manifestation is accepted, it may well

be claimed that any area of religious significance is a Swayambhu deity

which deserves to be recognised as a juristic personality. This problem is

compounded by the fact that worship to a particular deity at a religious site

and to the land underlying a religious site are for all intents and purposes,

indistinguishable. Hence, in order to provide a sound jurisprudential basis

for the recognition of a Swayambhu deity, manifestation is crucial. Absent

that manifestation which distinguishes the land from other property, juristic

personality cannot be conferred on the land.

193. It is conceivable that in certain instances the land itself would possess

certain unique characteristics. For example, it may be claimed that certain

patterns on a sea-shore or crop formations represent a manifestation of

the divine. In these cases, the manifestation is inseparable from the land

and is tied up to it. An independent question arises as to whether land can

constitute the physical manifestation of the deity. Even if a court

recognises land as a manifestation of a deity, because such land is also

governed by the principles of immoveable property, the court will need to

investigate the consequences which arise. In doing so the court must

analyse the compatibility of the legal regime of juristic personality with the

legal regime on immoveable property. It is necessary now to turn to this.

Property vested in a deity and property as a deity

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194. There is a significant distinction between property vested in a foundation

(as in Roman law) or a deity as a juristic person (as in Hindu Law) and

property per se being a juristic person. Where the property vests in a

foundation constituted for a pious purpose, it retains its characteristics as

immoveable property. This remains true even in cases where the property

vests in the deity in an ideal sense. The purpose of conferring juristic

personality is to ensure both a centre of legal relations as well as the

protection of the beneficial interest of the devotees. It does not however,

alter the character of the property which vests in the juristic person. It

remains subject to the framework of the law which defines all relationships

governing rights or interests claimed in respect of property and the

liabilities which attach to jural transactions arising out of property.

195. This distinction, which highlights the features of immoveable property

received articulation by the Privy Council in The Mosque, Masjid Shahid

Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar.110 In

that case, a mosque was dedicated in 1722 by one Falak Beg Khan. By

the deed of dedication, Sheikh Din Mohammad and his descendants were

appointed as Mutawallis. Since 1762, however, the building together with

the court-yard, well and adjacent land, was in the occupation and

possession of the Sikhs. The land adjacent to the mosque became the site

of a Sikh shrine. At the time of the annexation by the British in 1849, the

Sikhs were in possession of both the mosque and the adjacent lands.

110 AIR 1940 PC 116

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196. Thereafter, the building was demolished ―by or with the connivance of its

Sikh custodians‖. A suit was instituted in 1935 against Shiromani Gurdawara

Parbandhak Committee – who were in possession of the disputed property,

seeking a declaration that the building was a mosque in which the plaintiffs and

all the followers of Islam had a right to worship along with a mandatory injunction

to reconstruct the building. One of the 18 plaintiffs was the mosque itself - the site

and the building. The Privy Council assessed the contention that the mosque and

the adjoining properties were a juristic person. Rejecting the contention, Justice

George Rankin held:

―The argument that the land and buildings of a mosque are

not property at all because they are a ―juristic person‖
involves a number of misconceptions. It is wholly inconsistent
with many decisions whereby a worshipper or the mutwalli has
been permitted to maintain a suit to recover the land and
buildings for the purposes of the wakf by ejectment of a
trespasser… That there should be any supposed analogy
between the position in law of a building dedicated as a place
of prayer for Muslims and the individual deities of the Hindu
religion is a matter of some surprise to their Lordships… the
procedure in India takes account necessarily of the polytheistic
and other features of the Hindu religion and recognizes certain
doctrines of Hindu law as essential thereto, e.g. that an idol
may be the owner of property…
The decisions recognizing a mosque as a ―juristic person‖
appear to be confined to the Punjab : 153 PR 1884; Shankar
Das v. Said Ahmad (1884) 153 PR 1884 59 PR 1914; Maula
Bux v. Hafizuddin (1926) 13 AIR Lah 372 AIR 1926 Lah 372.6
In none of those cases was a mosque party to the suit, and in
none except perhaps the last is the fictitious personality
attributed to the mosque as a matter of decision. But so far as
they go these cases support the recognition as a fictitious
person of a mosque as an institution - apparently
hypostatizing an abstraction. This, as the learned Chief
Justice in the present case has pointed out, is very
different from conferring personality upon a building so as
to deprive it of its character as immovable property.‖
(Emphasis supplied)

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197. The Privy Council noted that if the mosque was a juristic person, this may

mean that limitation does not apply to it and that ―it is not property but an owner

of property.‖ Underlying the line of reasoning adopted by the Privy Council is that

the conferral of legal personality on immovable property could lead to the

property losing its character as immoveable property. Immoveable property, by its

very nature, admits competing proprietary claims over it. Immoveable property

may be divided. However, the recognition of the land itself as a juristic person

may potentially lead to the loss of these essential characteristics. Where juristic

personality was recognised in corporeal property itself such as the idol, it served

the larger purpose for which juristic personality was conferred – to ensure the

execution and protection of the pious purpose set out by a donor and the ultimate

protection of the beneficial interest of the worshippers. However, to confer legal

personality on immoveable property leads to consequences that fundamentally

have no nexus to the limited purpose for which juristic personality is conferred. It

sets apart immoveable property on which a juristic character is conferred from all

other species of immoveable property. This will lead to the claim that the legal

regime which applies to the latter (‗ordinary immoveable property‘) will not apply

to that class of immoveable property which is recognised as a juristic person in

and of itself. The principles of adverse possession and limitation would, if the

argument were to be accepted, not apply to the land as a legal person which is

incapable of being ―possessed‖. The conferral of legal personality in the context

of endowments was to ensure the legal protection of the endowed property, not

to confer upon the property legal impregnability by placing it outside the reach of

the law. The elevation of land to the status of a juristic person fundamentally

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alters its characteristics as immoveable property, a severe consequence against

which a court must guard. Nor is it a valid safeguard to postulate that the court

will decide on a case to case basis where a particular immoveable property

should have a juristic status. Absent any objective standard of application the

process of drawing lines will be rendered inherently subjective, denuding the

efficacy of the judicial process.

198. The land in question has been treated as immoveable property by all the

parties to the present dispute, including those from the Hindu community until

1989. The litigation over the disputed property dated back to 1885, and at no

point, until Suit 5 in 1989 was a plea taken that the land in question was anything

possessed of a juristic personality. Apart from the reasons which have been

outlined above, it would not be open for the court to treat the property differently

now, solely on the basis of the novel plea urged by the plaintiffs in Suit 5 in 1989.

Addressing title claims in a conventional framework

199. The facts of the present case raise questions of access of the devotees to

the site of religious worship and the question of who has title to the land. The

former may be protected by the court in several ways without the creation of an

artificial legal person. The protection against mismanagement squarely falls

within the domain of who should be recognised as a shebait, and this is

addressed elsewhere in the course of the present judgement. Generally

speaking, the court is empowered to address such situations upon an application

under Section 92 of the Code of Civil Procedure 1908. The question of title can

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be adjudicated upon using the existing legal regime applicable to immoveable

property. There is no reason bearing on necessity or convenience that would

compel the court to adopt the novel argument set forth by the plaintiffs in Suit 5

that juristic personality must be conferred on the disputed land.

200. The conferral of juristic personality is a legal innovation applied by courts in

situations where the existing law of the day has certain shortcomings or such

conferral increases the convenience of adjudication. In the present case, the

existing law is adequately equipped to protect the interests of the devotees and

ensure against maladministration without recognising the land itself as a legal

person. Where the law is capable of adequately protecting the interests of the

devotees and ensuring the accountable management of religious sites without

the conferral of legal personality, it is not necessary to embark on the journey of

creating legal fictions that may have unintended consequences in the future.

There is therefore no merit in the argument that faith and belief, and the

protection of faith and belief alone may necessitate the conferral of legal

personality on the second plaintiff. On the contrary, there exists a substantial risk

with adopting this argument. It may be contended by a section of a religion that a

particular plot of land is the birth-place, place of marriage, or a place where the

human incarnation of a deity departed for a heavenly abode; according to the

faith and belief of the devotees. Corporeal property may be associated with

myriad incidents associated with the human incarnation of a deity each of which

holds a significant place in the faith and belief of the worshippers. Where does

the court draw the line to assess the significance of the belief as the basis to

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confer juristic personality on property? In the absence of an objective criterion,

the exercise will be fraught with subjectivity. Adopting the argument of the

plaintiffs in Suit 5 may result in the conferral of legal personality on all such

claims to land. This conferral would be to the detriment of bona fide litigants

outside the faith – who may not share the same beliefs and yet find their title

extinguished. Further, such conferral of legal personality on immovable property

would be on the basis of the faith and belief of the devotees, which is

fundamentally subjective and incapable of being questioned by this Court.

201. The purpose for which juristic personality is conferred cannot be ‗evolved‘

into a trojan horse that permits, on the basis of religious faith and belief, the

extinguishing of all competing proprietary claims over property as well stripping

the property itself of the essential characteristic of immoveable property. If the

contention urged on the behalf of the plaintiffs in Suit 5 is accepted, it results in a

position in law where claims to ‗absolute title‘ can be sustained merely on the

basis of the faith and belief of the devotees. The conferral of legal personality on

corporeal property would immunise property not merely from competing title

claims, but also render vast swathes of the law that are essential for courts to

meaningfully adjudicate upon civil suits, such as limitation, ownership,

possession and division, entirely otiose. At best, the contention urged on behalf

of the plaintiffs in Suit 5 would sustain a claim that the specific site is a location of

religious significance for the devotees. It cannot however be extended to sustain

proprietary claims to the law or to immunise the land from proprietary or title

based claims of others by conferring juristic personality on the land itself.

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Commitment to constitutional values

202. A final observation must be made on this aspect of the case which is of

significant importance. The rejection of the contention urged on behalf of the

plaintiffs in Suit 5 touches upon the heart of our constitutional commitment to

secularism. The method of worship on the basis of which a proprietary claim may

be sustained is relatable to a particular religion. The conferral of legal personality

on idols stemming from religious endowments is a legal development applicable

only to a practice of the Hindu community. The performance of the parikrama is

a method of worship confined largely to Hinduism. Putting aside the fact that the

argument raised by the plaintiffs in Suit 5 is a novel extension of the law

applicable to Hindu religious endowments, this is a significant matter which

requires our consideration.

203. Religious diversity undoubtedly requires the protection of diverse methods

of offering worship and performing religious ceremonies. However, that a method

of offering worship unique to one religion should result in the conferral of an

absolute title to parties from one religion over parties from another religion in an

adjudication over civil property claims cannot be sustained under our

Constitution. This would render the law, which ought to be the ultimate impartial

arbiter, conferring a benefit on a party with respect to her or his legal claims, not

on the basis of the merits of a particular case, but on the basis of the structure or

fabric of the religion to which they belong. If the contention urged on behalf of the

plaintiffs in Suit 5 is accepted, the method of worship performed by one religion

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alone will be conferred with the power to extinguish all contesting proprietary

claims over disputed property.

204. It is true that the connection between a person and what they consider

divine is deeply internal. It lies in the realm of a personal sphere in which no other

person must intrude. It is for this reason that the Constitution protects the

freedom to profess, practice and propagate religion equally to all citizens. Often,

the human condition finds solace in worship. But worship may not be confined

into a straightjacket formula. It is on the basis of the deep entrenchment of

religion into the social fabric of Indian society that the right to religious freedom

was not made absolute. An attempt has been made in the jurisprudence of this

court to demarcate the religious from the secular. The adjudication of civil claims

over private property must remain within the domain of the secular if the

commitment to constitutional values is to be upheld. Over four decades ago, the

Constitution was amended and a specific reference to its secular fabric was

incorporated in the Preamble. At its heart, this reiterated what the Constitution

always respected and accepted: the equality of all faiths. Secularism cannot be a

writ lost in the sands of time by being oblivious to the exercise of religious

freedom by everyone.

205. It is for all the reasons highlighted above that the law has till today yet to

accept the conferral of legal personality on immoveable property. Religiosity has

moved hearts and minds. The court cannot adopt a position that accords primacy

to the faith and belief of a single religion as the basis to confer both judicial

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insulation as well as primacy over the legal system as a whole. From Shahid

Gunj to Ayodhya, in a country like ours where contesting claims over property by

religious communities are inevitable, our courts cannot reduce questions of title,

which fall firmly within the secular domain and outside the rubric of religion, to a

question of which community‘s faith is stronger.

On a consideration of all the factors outlined above, it is thus held that the second

plaintiff in Suit 5 – ‗Asthan Shri Ram Janam Bhumi‘ is not a juristic person.

K. Analysis of the suits

206. Suit 1 filed by Gopal Singh Visharad is essentially a suit by a worshipper for

enforcement of his right to worship Lord Ram at the Janmabhumi. Suit 3 filed by

Nirmohi Akhara is for handing over the management and charge of the

Janmabhumi temple to it. Suit 4 filed by Sunni Central Waqf Board is for a

declaration that the entirety of the disputed site, including Babri Masjid and the

surrounding graveyard, is a public mosque and for a decree for possession. Suit

5 is filed by the deity of Lord Ram and the Janmasthan (both of whom are

asserted to be juridical persons) through a next friend impleaded as a third

plaintiff for a declaration that the entire premises comprised of annexures 1, 2

and 3 to the plaint constitute Ram Janmabhumi and for an injunction against

interference in the construction of a new temple after the demolition of the

existing building.

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The judgment now proceeds to analyse and adjudicate upon the claims in the

suits.

L. Suit 1: Gopal Singh Visharad since deceased and survived by

Rajendra Singh v Zahoor Ahmad and others

L.1 Pleadings

207. On 16 January 1950, a suit was instituted by Gopal Singh Visharad before

the Civil Judge at Faizabad, describing himself as a Hindu devotee. He is a

resident of Ayodhya and follower of ‗Santan Dharm‘. His grievance was that he

was being prevented by officials of the government from entering the inner

courtyard of the structure to offer worship. The plaintiff claims that he is entitled to

worship the deity of Lord Ram. The following reliefs were sought:

(i) A declaration of his entitlement to worship and seek the darshan of Lord

Ram, ―according to religion and custom‖ at the Janmabhumi temple

without hindrance; and

(ii) A permanent and perpetual injunction restraining defendants 1 to 10 from

removing the idols of the deity and other idols from the place where they

were installed; from closing the way leading to the idols; or interfering in

worship and darshan.

The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when

the employees of the government are alleged to have unlawfully prevented the

plaintiff ―from going inside the place‖ and exercising his right of worship. It was

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alleged that the ―State‖ adopted this action at the behest of the Muslim

residents represented by defendant nos 1 to 5, as a result of which the Hindus

were stated to been deprived of their ―legitimate right of worship‖. The plaintiff

apprehended that the idols, including the idol of Lord Ram, would be removed.

These actions were alleged to constitute a ―direct attack on the right and title of

the plaintiff‖ and was stated to be an ―oppressive act‖, contrary to law.

208. Denying the allegations contained in the plaint, the Muslim defendant nos 1

to 5 stated in their written statement that:

(i) The property in respect of which the case has been instituted is not

Janmabhumi but a mosque constructed by Babur. The mosque was built in

1528 on the instructions of Babur by Mir Baqi, who was the Commander of

his forces, following the conquest of the sub-continent by the Mughal

emperor;

(ii) The mosque was dedicated as a waqf for Muslims, who have a right to

worship there. Babur laid out annual grants for the maintenance and

expenditure of the mosque, which were continued and enhanced by the

Nawab of Awadh and the British Government;

(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant

Raghubar Das only in respect of the Ramchabutra and hence, the claim

that the entire building represented the Janmasthan was baseless. As a

consequence of the dismissal of the suit on 24 December 1885, ―the

case respecting the Chabutra was not entertained‖;

(iv) The Chief Commissioner, Waqf appointed under the Muslim Waqf Act

1936 had held the mosque to be a Sunni Waqf;

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(v) Muslims have always been in possession of the mosque. This position

began in 1528 and continued thereafter, and consequently, ―Muslims are

in possession of that property… by way of an adverse possession‖;

(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which

point there were no idols under the central dome. If any person had

placed any idol inside the mosque with a mala fide intent, ―the

degradation of the mosque is evident and the accused persons are liable

to be prosecuted‖;

(vii) Any attempt of the plaintiff or any other person to enter the mosque to

offer worship or for darshan would violate the law. Proceedings under

Section 145 of the CrPC 1898 had been initiated; and

(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is

without basis as there exists, for quite long, another temple with idols of

Lord Ram and others, which is the actual place of the Janmasthan of Lord

Ram.

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

(i) The property in suit known as Babri Masjid has been used as a mosque for

the purpose of worship by Muslims for a long period and has not been

used as a temple of Lord Ram;

(ii) On the night of 22 December 1949, the idols of Lord Ram were

surreptitiously placed inside the mosque imperilling public peace and

tranquillity. On 23 December 1949, the City Magistrate passed an order

under Section 144 of CrPC 1898 which was followed by an order of the

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same date passed by the Additional City Magistrate under Section 145

attaching the disputed property. These orders were passed to maintain

public peace; and

(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal

Board, Faizabad-cum Ayodhya as a receiver of the property.

Similar written statements were filed by defendant no 8, the Additional City

Magistrate and defendant no 9, the Superintendent of Police.

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

(i) The building in dispute is not the Janmasthan of Lord Ram and no idols

were ever installed in it;

(ii) The property in suit was a mosque known as the Babri mosque

constructed during the regime of Emperor Babur who had laid out annual

grants for its maintenance and expenditure and they were continued and

enhanced by the Nawab of Awadh and the British Government;

(iii) On the night of 22-23 December 1949, the idols were surreptitiously

brought into the mosque;

(iv) The Muslims alone had remained in possession of the mosque from 1528

up to 29 December 1949 when it was attached under Section 145. They

had regularly offered prayers up to 23 December 1949 and Friday prayers

up to 16 December 1949;

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

(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi

of Lord Ram as the claim in the Suit of 1885 instituted by Mahant

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Raghubar Das (described to be the plaintiff‘s predecessor) was confined

only to the Ramchabutra measuring seventeen feet by twenty one feet

outside the mosque; and

(vii) There already existed a Ram Janmasthan Mandir, a short distance away

from Babri Masjid.

In the plaintiff‘s replication to the written statement of defendant nos 1 to 5, it was

averred that the disputed site had never been used as a mosque since 1934. It

was further stated that it was ―common knowledge‖ that Hindus were in

continuous possession by virtue of which the claim of the defendants ceased.

L.2 Issues and findings of the High Court

209. 1. Is the property in suit the site of Janam Bhumi of Sri Ram

Chandraji?

• Justice S U Khan - No temple was demolished for constructing the

mosque. Until the mosque was constructed during the period of Babur, the

premises in dispute were not treated as or believed to be the birth-place of

Lord Ram.

• Justice Sudhir Agarwal - The place of birth as believed and worshiped by

the Hindus is the area covered under the central dome of the disputed

structure in the inner courtyard.

• Justice D V Sharma - Decided against the defendants.

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2. Are there any idols of Bhagwan Ram Chandra Ji and are his
Charan

Paduka situated in the site in suit?

• Justice S U Khan – Idols were kept on the pulpit inside the mosque for

the first time during the night of 22-23 December 1949.

• Justice Sudhir Agarwal – Idols were placed under the central dome of

the disputed structure, within the inner courtyard, during the night of 22-23

December 1949 but before it they existed in the outer courtyard.

• Justice D V Sharma - Decided against the defendants.

2. Has the plaintiff any right to worship the ‗Charan Paduka‘ and

the idols situated in the place in suit?

• Justice S U Khan – The only thing which can be said is that Ramchabutra

came into existence before the visit of Tieffenthaler but after construction

of the mosque. Both parties were in joint possession.

• Justice Sudhir Agarwal – The plaintiff has a right to worship subject to

reasonable restrictions like safety, maintenance and security.

• Justice D V Sharma - Decided in favour of the defendants.

2. Has the plaintiff the right to have darshan of the place in suit?

• Justice S U Khan – The only thing which can be said is that Ramchabutra

came into existence before the visit of Tieffenthaler but after construction

of the mosque. Both parties were in joint possession.

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• Justice Sudhir Agarwal – The plaintiff has a right to worship subject to

reasonable restrictions like safety, maintenance and security.

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 Justice D V Sharma –

Decided in favour of the defendants.

5(a). Was the property in suit involved in original Suit no 61/280 of 1885 in

the court of sub-judge (Faizabad Raghubar Das Mahant v Secretary of

State for India and others)?

• Justice S U Khan – Nothing was decided in the Suit of 1885 and res

judicata does not apply.

• Justice Sudhir Agarwal – Answered in the negative.

• Justice D V Sharma – Property existed as nazul land.

5(b). Was it decided against the plaintiff?

• Justice Sudhir Agarwal – Suit of 1885 was decided against Mahant

Bhaskar Das and no relief was granted to him.

• Justice D V Sharma - Property existed as nazul land.

5(c). Was that suit within the knowledge of Hindus in general and were all

Hindus interested in the same?

• Justice Sudhir Agarwal – Answered in the negative. No material on

record to justify that the suit was filed by Mahant Raghubar Das in a

representative capacity.

• Justice D V Sharma – Decided in favour of the defendants.

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 Justice D V Sharma –

5(d). Does the decision in same bar the present suit by principles of res

judicata and in any other way?

• Justice Sudhir Agarwal – Answered in the negative.

Decided in favour of the defendants.

6. Is the property in suit a mosque constructed by Babur commonly

known as Babri Mosque, in 1528 A.D?

• Justice S U Khan – The construction of a mosque took place by or under

the orders of Babur. Whether it was actually built by Mir Baqi or someone

else is not material. Muslims offered regular prayers until 1934, after which

until 22 December 1949 only Friday prayers were offered. This is sufficient

for continuous possession and use. No temple was demolished for the

construction of the mosque.

• Justice Sudhir Agarwal – Plaintiffs have failed to prove the construction

of the structure by Babur in 1528 A. D.

• Justice D V Sharma – Decided against the defendants.

7. Have the Muslims been in possession of the property in suit from

1528 A.D. continuously, openly and to the knowledge of the

defendants and Hindus in general? If so, its effect?

• Justice S U Khan – Title follows possession and both parties were in joint

possession of the disputed premises.

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 Justice D V Sharma –

• Justice Sudhir Agarwal – Decided in favour of the plaintiff.

• Justice D V Sharma – Decided in favour of the defendants.

8. Is the suit barred by proviso to Section 42 of the Specific Relief Act?

• Justice S U Khan – Not barred.

• Justice Sudhir Agarwal – Not barred.

Decided in favour of the defendants.

9. Is the suit barred by the provisions of Section 5(3) of the Muslim Waqf

Act (U.P. Act 13 of 1936)?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Decided in favour of the plaintiff.

• Justice D V Sharma – Decided in favour of the defendants.

9(a). Has the said Act no application to the right of Hindus in general and

plaintiff of the present suit, in particular to his right of worship?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – In favour of the Hindu parties in general.

• Justice D V Sharma – Decided in favour of the defendants.

9(b). Were the proceedings under the said Act, referred to in para 15 of the

written statement, collusive? If so its effect?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Decided against the plaintiff.

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 Justice D V Sharma –

• Justice D V Sharma – Decided in favour of the defendant.

9(c). Are the said provisions of the U.P. Act 13 of 1936 ultra vires for

reasons given in the statement of plaintiff's counsel dated 9.3.62

recorded on paper no. 454-A?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the negative.

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10. Is the present suit barred by time?

• Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma –

The suit is not barred by limitation.

11(a).Are the provisions of section 91 C.P.C. applicable to the present suit?

If so, is the suit bad for want of consent in writing by the Advocate

General?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal

• Justice Sudhir Agarwal – Answered in the negative.

• Justice D V Sharma – Decided in favour of the plaintiff.

11(b). Are the rights set up by the plaintiff in this suit independent of the

provisions of section 91 CPC? If not, its effect.

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the affirmative.

• Justice D V Sharma – Decided in favour of the plaintiff.

12. Is the suit bad for want of steps and notice under Order 1, Rule 8

CPC? If so, its effect?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal and Justice D V Sharma – Answered in favour

of the plaintiff.

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13. Is the Suit 2 of 50 (Shri Gopal Singh Visharad v Zahoor Ahmad) bad

for want of notice under Section 80 CPC?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Not rejected as barred.

• Justice D V Sharma – Decided in favour of the defendants.

14. Is the Suit no 25 of 50 Param Hans Ram Chandra v Zahoor Ahmad bad

for want of valid notice under Section 80 CPC?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal and Justice D V Sharam – Issue redundant

after dismissal of the suit as withdrawn.

15. Is the suit bad for non-joinder of the defendants?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal and Justice D V Sharma – Answered in the

negative and in favour of the plaintiff.

16. Are the defendants or any of them entitled to special costs under

Section 35-A CPC?

• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Counsel did not press the issue.

• Justice D V Sharma – Plaintiff is not entitled for relief and suit dismissed

with easy costs.

17. To what reliefs, if any, is the plaintiff entitled?

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• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal

• Justice Sudhir Agarwal – The plaintiff‘s right of worship cannot be

doubted since the site in dispute includes part of the land which is believed

to be the place of birth of Lord Ram. To this extent the plaintiff is entitled for

a declaration subject to restrictions which may be necessary on account of

security, safety and maintenance of the place of worship.

• Justice D V Sharma – Plaintiff is not entitled for relief and suit is

dismissed with easy costs.

L.3 Analysis

210. Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the

Plaintiff in Suit 1 adverted to the order of the Magistrate dated 29 December

1949, under Section 145 CrPC by which the disputed premises were attached

and a receiver was appointed. Learned Counsel stated that fourteen affidavits

were filed by certain Muslims under Order XIX, Rule 1 of the CPC between 8-16

February 1950, stating that:

(i) The place where the Babri Masjid was situated is the birth-place of Lord

Ram. The Babri Masjid was built by ‗breaking‘ the birth-place of Lord Ram;

(ii) After British Rule, Muslims were only reading Friday namaz in the mosque;

(iii) After the construction of the Masjid, Hindus did not give up their

possession and continued to worship there;

(iv) Both Hindus and Muslims continued to worship at the disputed site;

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(v) Post the riots of 1934, Muslims had stopped going to the Masjid out of fear

and ever since, the Hindus had taken possession of the main place in the

mosque; and

(vi) There was no objection if the possession of the mosque was to be handed

over to the Hindus as reading namaz at that place was against the Shariat.

211. Justice Sudhir Agarwal did not pay any credence to the affidavits and held

that:
―3020... The aforesaid documents to the extent to prove the
fact that the same were filed before the Magistrate and
constitute part of the record of 145 Cr.P.C. proceeding before
the City Magistrate is not disputed but to believe the contents
thereof, in our view, it was necessary to produce the authors
of the documents and to give an opportunity of
crossexamination to the other parties against whose interest
the documents contain certain averments. None of the author
of the said documents have been produced and they are also
not party to the proceedings individually. We have no benefit
of testifying the correctness of the contents of the said
documents. In the absence of any one available to prove the
contents of the said documents, in our view, the same cannot
be relied and therefore, nothing turns out from the aforesaid
documents either in favour or against any of the parties.‖

Justice S U Khan agreed with the observations made by Justice Sudhir Agarwal.

However, Justice D V Sharma has held the affidavits to be admissible and

observed that:

―...affidavits of the persons under or through whom the

plaintiffs are claiming were sworn before an official
empowered by the Magistrate are admissible evidence...‖

212. Mr Ranjit Kumar, has made the following submissions:

(i) The Suit of 1885 will have no impact on the present suit as in the earlier

suit the relief sought was for the permission to establish a temple over a

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platform which was confined to the Chabutra outside the mosque.

However, the present suit is with respect to the right to worship and seek

the darshan of Lord Ram, ―according to religion and custom‖ at the

Janmabhumi temple;

(ii) On 3 March 1951, the Trial Court confirmed the ad-interim order dated 19

January 1950 passed in Suit 1 by which the injunction was modified to prevent

the idols from being removed from the disputed site and from causing

interference in the performance of puja. The trial judge referred to the affidavits

of certain Muslim residents of Ayodhya and stated that at least from 1936 ―the

Muslims have neither used this site as a mosque nor offered prayers there‖ and

―the affidavits referred do make out a prima facie case in favour of the

plaintiff‖. The above order was confirmed by a Division Bench of the High Court

of Allahabad in appeal on 26 April 1955, though the High Court made an

observation that taking on record the affidavits after the judgment had been

reserved, was not correct;

(iii) Despite the publication of public notices in three newspapers calling

objections with respect to the Section 145 proceedings, none of the

Muslim defendants filed any contrary statements;

(iv) These affidavits have corroborative value: when defendant nos 1 to 5 filed

their written statements in Suit 1 on 21 February 1950, despite having

knowledge of the affidavits filed in the Section 145 proceedings, they did

not object to the stand taken by Muslims;

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(v) Before the High Court, the affidavits had been brought on record in the

present suit and were duly exhibited. They form part of relevant historical

facts and could not be rejected outright;

(vi) Defendant nos 1 to 5 filed an application praying that Suit 1 be treated as a

representative suit under Order I Rule 8, which was opposed by the

plaintiff. The Civil Judge by an order dated 27 October dismissed the

application;

(vii) During the course of arguments before this Court, in the exhibits relied

upon by the Sunni Central Waqf Board to show possession from 1858 the

disputed site has been referred to as ―Janam Asthan Masjid‖ or ―Masjid

Janam Asthan‖ signifying that the site was always referred to as the

Janmasthan or birth-place of Lord Ram;

(viii) The right of entry into the temple for purposes of ―darshan‖ or worship is

a right which flows from the nature of the institution itself (Nar Hari Shastri

v Shri Badrinath Temple Committee 122). Worship includes attendance at

the temple for the purpose of darshan of a deity or deities in the precincts

(Sastri Yagnapurushadji v Muldas Bhudardas Vaishya123). If the general

public have always made use of the temple for public worship and

devotion in the same way as they do in other temples, it is a strong

circumstance in favour of the conclusive existence of a public temple (Bala

Shankar Maha Shanker Bhattjee v Charity Commissioner, Gujarat

State124).

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Mr Ranjit Kumar, learned Senior Counsel referred to the order of the Magistrate

dated 30 July 1953, by which the file in the proceedings under Section 145 was

consigned to the record in view of the temporary injunction granted on 3 March

1951. The Magistrate noted that the case under Section 145 had been pending

‗unnecessarily‘ and dates were being fixed in the hope that the civil suit will be

disposed of or the temporary injunction will be vacated. However, the Magistrate

noted that the finding of the civil court was binding on the criminal court and there

122
1952 SCR 849
123
(1966) 3 SCR 242
124
1995 Supp (1) SCC 485
was no purpose in starting the proceedings separately under Section 145. Mr

Ranjit Kumar drew this Court‘s attention to the application dated 22 July 1954

filed by Gopal Singh Visharad before the Magistrate requesting him to preserve

all files with respect to the proceedings under Section 145 and not to weed them

out till the finality of the decision of the civil court.

213. Dr Rajeev Dhavan, learned Senior Counsel appearing for the Sunni Central

Waqf Board, has raised the following submissions in reply:

(i) The written statements filed by defendant nos 1 to 5 do not include the

Sunni Central Waqf Board;

(ii) The mosque was constructed by Babur through his Commander Mir Baqi

and was dedicated as a valid waqf. Under the Muslims Waqf Act 1936, the

Chief Commissioner Waqf decided that the mosque was a Sunni Waqf;

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(iii) The Muslims have been in possession of the mosque since 1528 and by

virtue of being in possession for more than 400 years, affirmed their right

of adverse possession over the disputed property;

(iv) Suit 1 has been primarily filed against the State authorities as the main

grievance was against the authorities preventing the plaintiff from offering

worship inside the disputed premises;

(v) The suit was filed to enforce a personal right of the plaintiff i.e. the right to

worship inside the disputed structure and thus, the right gets automatically

extinguished on his death;

(vi) The fourteen affidavits filed by the Muslim persons of Ayodhya in the

proceedings under Section 145 proceedings are not admissible in

evidence under Section 3 of the Indian Evidence Act. The affidavits have

no relevance as the authors of the affidavits have not been cross

examined and since they are not parties to any of the suits individually,

they cannot be relied upon. Justice Sudhir Agarwal has found these

affidavits to be unreliable;

(vii) There is no clear mention of whether the plaintiff had earlier carried out

any worship inside the disputed structure and he has not mentioned the

exact place of birth of Lord Ram below the central dome; and

(viii) The exhibits relied upon by the Sunni Central Waqf Board clearly show

that the Hindu parties had access to only the outer courtyard restricted to

the Ramchabutra and Sita Rasoi. All efforts of trespass in the inner

courtyard were thwarted and the authorities passed directions evicting

those who tried to enter the inner courtyard.

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214. None of the persons who are alleged to have filed affidavits in the

proceedings under Section 145 were examined in evidence during the course of

the civil trial before the High Court. The credibility of a statement made by a

person on affidavit can only be accepted if the witness is produced in evidence.

However, in the present case, the Muslim residents who presented the affidavits

before the Magistrate in the proceedings under Section 145 were not cited or

produced as witnesses. In the absence of any opportunity to the opposite side to

challenge the statements made in the affidavits, no reliance can be placed upon

the contents of the affidavits.

215. The original plaintiff Gopal Singh Visharad passed away during the

pendency of the suit and was substituted by his son, Rajendra Singh Visharad

pursuant to the court‘s order dated 22 February 1986. It was contended that the

original plaintiff instituted the suit for enforcing his private right to worship at the

disputed property and that upon his death, such right was extinguished, and the

suit stood abated. It is necessary to advert to the pleadings in Suit 1 to determine

whether the right asserted by the original plaintiff was a private right or involved a

larger public right claimed in common with other worshippers. Paragraph 3 of the

plaint in Suit 1 reads as follows:

―…Defendant No.6 prevented the plaintiff from going inside

the place where the idol of Shri Ramchandra Ji and others are
placed and it was learnt that after getting influence with the
baseless and false perversity of the Defendants No.1 to 5 and
their other fellows, Defendant No.7 to 9 have deprived the

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Hindu public from their legitimate right of performing

worship and having darshan and because of undue
insistence of the Defendants No.1 to 5 etc., Defendant No. 6
declares that Hindu Public shall be deprived from their
above rights in the same manner in future also and
because of the above unjustifiable act, proprietary right of
original plaintiff which he had always used, is being infringed
and in the above circumstances, present plaintiff has the
complete apprehension and fear of improper and unlawful
interference in the Defendants in exercise of the above
religious rights.‖
(Emphasis supplied)

Defendant no 6 is the State of Uttar Pradesh defendants nos 7 to 9 are the

Deputy Commissioner, Additional City Magistrate and the Superintendent of

Police, Faizabad respectively. The pleadings indicate that the right asserted was

not a private right, but a right in common with and for the benefit of other Hindu

devotees to pray at the disputed property. The right claimed was that of the

―Hindu public‖ to worship at the disputed property without undue interference.

By

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an order dated 22 February 1986, the court permitted Rajendra Singh Visharad,

the son of the original plaintiff, to be substituted as the first plaintiff in Suit 1.

Rajendra Singh Visharad is also a follower of the ‗Sanatan Dharm‘ and

performed worship at the disputed site. The right asserted on behalf of the larger

―Hindu public‖ does not stand extinguished upon the death of the original

plaintiff and can be pursued by his son who is also a worshipper.

216. The remaining issues in contention in Suit 1 are connected with the ones

argued in Suit 5. The relief sought in Suit 5 will have a direct impact on the

plaintiff‘s right to pray as claimed in Suit 1. Accordingly, we will deal with the

contentions raised in Suit 1 at the time of addressing the contentions in Suit 5.

M. Suit 3: Nirmohi Akhara

M.1 Pleadings

217. Nirmohi Akhara claims that the Janmasthan, commonly known as

Janmabhumi, which is the birth-place of Lord Ram ―belongs and has always

belonged‖ to it and it has been ―managing it and receiving offerings through the

reigning Mahant and Sarbrahkar‖. Besides the receiver, the second to fifth

defendants are official respondents represented by the State of Uttar Pradesh

and its officers. The plaint contains an averment that the temple has ―ever since

been in the possession of‖ Nirmohi Akhara and only Hindus have been allowed

to enter and worship in it, at least since 1934. In other words, Nirmohi Akhara

denies the status of the disputed structure as a mosque. The basis for the

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institution of the suit is the initiation of the proceedings under Section 145 of the

CrPC 1898 by the City Magistrate. The proceedings are alleged to be without

lawful cause and under the ―wrong persuasion‖ of the Muslim parties

represented by the sixth and eighth defendants. As a result, the Nirmohis allege

that they were wrongfully deprived ―of their management and charge of the said

temple‖ and that though they were awaiting the conclusion of the proceedings

under Section 145, the proceedings have been unduly prolonged with the

connivance of the defendants.

The Muslim parties have been impleaded because they are alleged to be

interested in ensuring that the charge and management of the temple is not

handed over to Nirmohi Akhara. The cause of action for the suit is stated to have

arisen on 5 January 1950 when the receiver is alleged to have illegally taken over

management and charge of the temple from Nirmohi Akhara. Following the

incident which took place on 6 December 1992 (which the Nirmohis claim as the

demolition of the property of the temple by ―some miscreants‖), the plaint was

amended. The amended plaint refers to the trust deed executed by Nirmohi

Akhara on 19 March 1949 reducing its existence into writing. The Akhara claims

to own several temples and properties, which vest in it. The relief that is claimed

in the suit is for the removal of the receiver ―from the management and charge

of the said temple of Janmabhoomi‖ and for delivering it to the plaintiff.

The averments contained in the plaint as well as the reliefs which have been

claimed by Nirmohi Akhara indicate that the claim is founded on an entitlement,

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which is asserted to be the charge and management of the temple. In that

capacity, the Nirmohis state that they have been in possession of the

Janmabhumi temple and have received offerings made by devotees. The plaint

contains a reference to the temples that are owned and managed by Nirmohi

Akhara. There is a reference to the possession of the Janmasthan temple by the

Akhara. Ultimately, the claim for relief is a direction simpliciter to the receiver to

handover the management and charge of the temple to it.

218. In the written statement, which was filed by the Muslim parties (defendant

nos 6 to 8), the plea taken was that in the Suit of 1885 which was instituted by

Mahant Raghubar Das, the relief was confined to the Chabutra outside the

mosque and no objection was taken in respect of the mosque which was

depicted in the site plan.

In its replication, Nirmohi Akhara expressed ignorance about the suit filed by

Mahant Raghubar Das. The Akhara claims that it has been wrongfully deprived of

charge and the right to manage the temple as a result of the proceedings.

Though in the plaint it appears that the claim in the suit was in respect of the

inner courtyard, in the replication filed by Nirmohi Akhara to the written statement

of the tenth defendant, it has been stated that the outer enclosure was in its

possession and was owned and managed by it until 1982 when it came into

possession of the receiver in a suit inter se being Regular Suit 39 of 1982.

219. The averments contained in the pleadings of Nirmohi Akhara in Suit 3 must

be read together with the nature of their defence to Suit 5. Suit 5 has been

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instituted on behalf of the deity of Lord Ram and the Janmasthan by a next

friend.

Nirmohi Akhara in its written statement in Suit 5 opposes the maintainability of the

Suit on the ground that the Janmasthan is not a juridical person and the next

friend had no right or authority to institute a suit on behalf of the deity and the

Janmasthan. Nirmohi Akhara has distanced itself from Suit 5, claiming that the

idol of Lord Ram is not known as ―Ram Lala Virajaman‖ and that the

Janmasthan is simply a place and not a juridical person.

Nirmohi Akhara has claimed in its written submissions that it is the ―Shebait of

Bhagwan Shri Ram installed in the temple in dispute‖ and that the Akhara

―alone‖ has the right to control, supervise and repair or even to reconstruct the

temple, if necessary. It claims that in its capacity as the shebait and manager,

―the temple belongs to Nirmohi Akhara‖ and the plaintiffs in Suit 5 ―have no

real title to sue‖. It

has been urged that Suit 5 encroaches upon the rights of Nirmohi Akhara to

manage the temple. Nirmohi Akhara urges that the entire premises belong to it

and the plaintiffs in Suit 5 have no right of declaration against the right and title of

Nirmohi Akhara. In the additional written statement, it has been claimed that the

outer part was in the management and charge of Nirmohi Akhara till it was

attached when the receiver was appointed in Regular Suit 239 of 1982.

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M.2 Conflict between Suit 3 and Suit 5

220. The following position emerges from an analysis of the pleadings of Nirmohi

Akhara in Suit 3 and as a defendant in Suit 5:

(i) The claim of Nirmohi Akhara is for the management and charge of Ram

Janmabhumi temple;
(ii) The relief sought is for handing over of the management and charge of the

temple by the receiver to it;

(iii) In the context of (i) and (ii) above, Nirmohi Akhara has claimed that it was

in possession of the temple;

(iv) The deprivation of the right claimed arose when the receiver took over

management and charge on 5 January 1950;

(v) The claim of Nirmohi Akhara is in the capacity of a shebait and as a

manager of the temple;

(vi) Nirmohi Akhara opposes the maintainability of Suit 5 on the ground that as

a shebait, it alone is entitled to represent the deity of Lord Ram;

(vii) The entitlement of Nirmohi Akhara to sue is to the exclusion of any third

party and hence, Suit 5 which has been instituted through a next friend, is

asserted as not being maintainable; and

(viii) The status of Ram Janmasthan as a juristic entity is denied and hence it

would (according to Nirmohi Akhara) not be entitled to pursue the claim in

Suit 5.

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Both on the basis of the pleadings and the submissions which have been urged

during the course of the hearing, a clear conflict of claims and entitlements has

emerged between the plaintiffs in Suit 3 and Suit 5.

221. Mr K Parasaran, learned Senior Counsel appearing on behalf of the plaintiffs

in Suit 5 has submitted that Suit 3 is barred by limitation, a submission which has

also been urged on behalf of the plaintiff in Suit 4 by Dr Dhavan. On the other

hand, it must be noted that Dr Dhavan submitted that Nirmohi Akhara is as a

matter of fact and evidence entitled to claim shebaiti rights in respect of the idols

of Lord Ram at the Janmabhumi. He however maintains that Suit 3 is barred by

limitation and hence, no relief should or could have been granted in their suit.

Hence, from the arguments before this Court it has emerged that:

(i) The plaintiffs in Suit 4 and Suit 5 have challenged Suit 3 on the ground of

the bar of limitation;

(ii) The plaintiffs in Suit 5 oppose the claim of the plaintiff in Suit 3 to be the

shebait of the idols of Lord Ram; and

(iii) The plaintiff in Suit 4 accepts the entitlement of the plaintiff in Suit 3 as a

shebait, subject to the caveat that the suit itself is barred by limitation.

222. A query was addressed by this Court to Mr S K Jain, learned Senior Counsel

appearing for the plaintiff in Suit 3 as to whether it is open to a shebait to assert

title or ownership in a manner hostile to the claim of the deity. In response, Mr

Jain submitted that the claim of Nirmohi Akhara is for management and charge of

the temple in its character as a shebait and no more. Hence, though it has used

the phrases ‗own‘ and ‗belong‘, they are not intended to assert a claim of full

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ownership, over and above or any higher than as a shebait. This aspect of Mr

Jain‘s submission will be examined shortly in the context of the issue of limitation.

However, it must be also noted at this stage that, during the course of the

hearing, Mr Jain tendered a statement on the stand of Nirmohi Akhara on the

maintainability of Suit 5 in the following terms:

―1. The Nirmohi Akhara would not press the issue of

maintainability of Suit No. OOS No. 5 of 1989 which has
been filed on behalf of the deities Plaintiff No. 1 and 2
through
Plaintiff No. 3 as their next friend under Order 32 Rule 1 CPC
provided the other Hindu Parties i.e. Plaintiff of OOS No. 1 of
1989 and Plaintiff No. 3 of OOS No. 5 of 1989 do not press
or question the Shebaiti right of Nirmohi Akhara in relation to
the deities in question and the maintainability of Suit OOS
No. 3 of 1989 by the Plaintiff Nirmohi Akhara.
2. It is submitted that the plaintiff – Nirmohi Akhara can independently
maintain the suit even in the absence of deities as parties in Suit
OOS No. 3 of 1989 as the identity of the deities is merged in the
identity of the Shebait – Nirmohi Akhara. A suit filed by the Nirmohi
Akhara ―as a Shebait‖ is a suit filed by and on behalf of the deities.
3. It is stated that, the reliefs sought by the Nirmohi Akhara
―For restoration of charge and management from the
receiver‖ cannot be categorized as reliefs ―against‖ the
interest of the deities for which it can be said that they should
be represented as a defendant through a disinterested next
friend.‖

In other words, the stand of Nirmohi Akhara is that it alone is entitled to represent

the interest of the deity in its character as a shebait which it has done in Suit 3.

Moreover, absent any allegation of mismanagement on the part of the shebait, a

suit cannot be instituted in the name of the deity by a next friend, as has been

done in Suit 5. This aspect will be explored in greater detail when the

maintainability of Suit 5 is analysed. At this stage, we must also notice the

implications of Dr Dhavan having accepted the shebaiti claim of Nirmohi Akhara.

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The concession cannot exist in a vacuum. The assertion of the claim can only

take place in a context which acknowledges the existence of a deity whom the

shebait seeks to represent. Hence, a specific query was posed to Dr Dhavan as

to whether, quite independent of the issue of limitation, the concession which has

been made on his behalf would necessarily result in a legal consequence in

regard to the position of the deity‘s presence at Ram Janmasthan. To this, it must

be noted that the response of Dr Dhavan was that the presence of the deity at

Ramchabutra, in his submission, envisaged only an easementary right to worship

for the Hindu devotees to pray and, for that purpose, to gain access to the

courtyard.

M.3 Issues and findings of the High Court

223. Before proceeding with our analysis any further, it is necessary at this stage

to enumerate the issues which were framed in Suit 3 and the findings of the High

Court.

1 Is there a temple of Janmabhumi with idols installed therein as

alleged in para 3 of the plaint in Suit 3?

• Justice S U Khan - The idols were held to have been placed in the

pulpit inside the constructed portion of the mosque for the first time

during the night of 22/23 December 1949.

• Justice Sudhir Agarwal – The premises in dispute cannot be

treated to be a temple in the manner as claimed by the plaintiffs in

Suit 3. Hence, issue 1 was answered in the negative.

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• Justice D V Sharma – There is no evidence to establish that there

was any temple belonging to Nirmohi Akhara inside the structure in

which idols have been installed from time immemorial.

2 Does the property in Suit belong to the plaintiff in Suit 3?

• Justice Sudhir Agarwal - The property which forms the subject

matter of the claim in Suit 3 consists of the premises in the inner

courtyard. There is no documentary evidence to establish title nor is

there any evidence to establish adverse possession.

• Justice D V Sharma held against the plaintiff.

3 Have plaintiffs acquired title by adverse possession for over 12

years?

• Justice S U Khan – For the period before 1855, there is no need to

decide the question of adverse possession.

• Justice Sudhir Agarwal held against the plaintiff.

• Justice D V Sharma held against the plaintiff.

4 Are plaintiffs entitled to get management and charge of the said

temple?

• Justice Sudhir Agarwal held against the plaintiff. The idols were

placed under the central dome on the night intervening 22/23

December 1949. The plaintiff having disputed this cannot be treated

as shebaits of the idols placed under the central dome since there is

no evidence of their taking care of the deity in the inner courtyard

under the central dome.

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• Justice D V Sharma held against the plaintiff.

5 Is the property in suit a mosque made by Emperor Babur known as

Babri Masjid?

• Justice S U Khan – The constructed portion of the disputed

premises was put up as a mosque by or under the orders of Babur.

It was not material if it was built by Mir Baqi or someone else.

However, it is not proved by direct evidence that the premises in

dispute including the constructed portion belonged to Babur or to the

person who constructed the mosque. On the basis of the

inscriptions alone it cannot be held that the building was constructed

by or under the orders of Babur or that it was constructed in 1528.

• Justice Sudhir Agarwal – The defendants failed to prove that the

property in dispute was constructed by Babur in 1528.

• Justice D V Sharma – The property in dispute has been

constructed by Babur.

6 Was the alleged mosque dedicated by Emperor Babur for worship by

Muslims in general and made a public waqf property?

• Justice S U Khan – It cannot be held that the mosque was not a

valid mosque, having been constructed over the land of someone

else.

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• Justice Sudhir Agarwal – In the absence of evidence direct,

circumstantial or otherwise issue no 6 has not been proved and is

answered in the negative.

• Justice D V Sharma – Decided together with issue no 1.

7(a) Has there been a notification under Muslim Waqf Act (Act no 13 of

1936) declaring this property in suit as a Sunni Waqf?

• Justice Sudhir Agarwal – Answered in the negative.

• Justice D V Sharma – As per the conclusions drawn in Suit 4.

7(b) Is the said notification final and binding? Its effect.

• Justice Sudhir Agarwal – Answered In the negative.

• Justice D V Sharma – As per the conclusions drawn in Suit 4.

8 Have the rights of the plaintiffs been extinguished for want of

possession for over 12 years prior to the suit?

• Justice S U Khan – Parties are enjoying joint possession and

hence, it was not necessary to decide the issue of adverse

possession.

• Justice Sudhir Agarwal – The suit was instituted in 1959 and it

cannot be said that in the preceding 12 years, the plaintiffs never

had possession of the inner courtyard. Neither of the plaintiffs have

discharged the burden of establishing that they were owners of the

property in dispute nor have the defendants established that the

plaintiffs remain dispossessed for over 12 years and that the

defendants have fulfilled the requirements of adverse possession.

The issue is accordingly answered in the negative.

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• Justice D V Sharma – Answered against the plaintiff and as per the

conclusions drawn in Suit 4.

9 Is the suit within time?

• Justice S U Khan – The suit was within limitation.

• Justice Sudhir Agarwal – The suit is barred by limitation under

Article 120 of the Limitation Act. Articles 47, 142 and 144 of the

Limitation Act were inapplicable.

• Justice D V Sharma – The suit is barred by limitation.

10(a) Is the suit bad for want of notice u/s 80C?

• Justice Sudhir Agarwal – answered in favour of the plaintiffs.

• Justice D V Sharma – answered in favour of the plaintiffs.

10(b) Is the above plea available to contesting defendants?

• Justice Sudhir Agarwal – answered in favour of the plaintiffs.

• Justice D V Sharma – answered in favour of the plaintiffs.

11 Is the suit bad for non-joinder of necessary defendants?

• Justice S U Khan – though the issue has not been dealt with

specifically, he has agreed with the findings of Justice Sudhir

Agarwal which are not inconsistent with his own findings.

• Justice Sudhir Agarwal – answered in favour of plaintiffs as not

pressed.

• Justice D V Sharma – decided in terms of the findings on issue 21

in Suit 4.

12 Are defendants entitled to special costs u/s 35 CPC?

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• Justice Sudhir Agarwal – answered in favour of the plaintiffs as

not pressed.

• Justice D V Sharma – answered in the negative.

13 To what relief, if any, is the plaintiff entitled?

• Justice S U Khan – Each of the three parties (Muslims, Hindus

and Nirmohi Akhara) is entitled to a declaration of joint title and

possession to the extent of one-third share each and a preliminary

decree is passed to that effect.

• Justice Sudhir Agarwal – The plaintiff in Suit 3 is not entitled to

any relief. Despite this, it has been held that possession of the area

governed by Ramchabutra, Sita Rasoi and Bhandar in the outer

courtyard is declared to be the share of Nirmohi Akhara in the

absence of any claim for better title. Moreover, the open area in the

outer courtyard shall be shared by Nirmohi Akhara with the plaintiffs

in Suit 5.

• Justice D V Sharma – the suit is dismissed and Nirmohi Akhara is

not entitled to any relief.

14 Is the suit not maintainable as framed?

• Justice S U Khan – Issue not decided specifically. Miscellaneous

findings – he has agreed with Justice Sudhir Agarwal, subject to

anything contrary in his (Justice S U Khan‘s) judgment.

• Justice Sudhir Agarwal – suit held not maintainable. Upon the

attachment of the property under Section 145 of the CrPC 1898,

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the plaintiffs could have filed an objection before the Magistrate.

The plaintiff did not file any objections or seek any declaration of

title, in the absence of which the civil judge could not have directed

the handing over of charge by the receiver to the plaintiff.

• Justice D V Sharma – The issue is decided in favour of the

plaintiffs.

15 Is the suit property valued and court-fee paid sufficient?

• Justice Sudhir Agarwal – answered in favour of the plaintiffs as

not pressed.

16 Is the suit bad for want of notice u/s 83 of U.P. Act 13 of 1936?

• Justice Sudhir Agarwal – – answered in the negative.

17 Whether Nirmohi Akhara, the Plaintiff, is a Panchayati Math of

Ramanand sect of Bairagis and as such, is a religious denomination

following its religious faith and per suit according to its own

customs? (added by Hon‘ble High Court‘s order dated 23 February

1996)

• Justice Sudhir Agarwal – answered in favour of the plaintiffs.

• Justice D V Sharma – answered held in favour of the plaintiffs.

M.4 Limitation in Suit 3

224. Suit 3 was instituted on 17 December 1959. The Limitation Act of 1908

was in force on the date of the institution of the Suit. Section 3 of the Limitation

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Act provides that subject to the provisions contained in Sections 4 to 25

(inclusive) every suit instituted, appeal preferred, and application made, after the

period of limitation prescribed by the first schedule shall be dismissed, although

limitation has not been set up as a defence. Section 31(b) 111 of the Limitation Act

1963 saves suits, appeals and applications which were pending on the date of its

commencement from the application of the legislation. As a result, the issue of

limitation for the purpose of Suit 3 is governed by the Limitation Act 1908.

By a split 2:1 verdict, the High Court held that Suit 3 was barred by limitation, the

dissenting judge on this issue being Justice S U Khan.

225. Three articles of the schedule to the Limitation Act 1908 have been
pressed in aid and the issue is which of those articles would stand attracted. The
relevant articles are Articles 47, 120 and 142. These articles are extracted in the
table below:
Description of suit Period of limitation Time from which period
begins to run

47. By any person bound by [Three years] The date of the final order in
an order respecting the the case.
possession of immoveable
property made under the Code
of Criminal Procedure, 1898,
or the Mamlatdars Courts Act,
1906, or by any one claiming
under such person, to recover
the property comprised in such
order.

120. Suit for which no period of [Six years] When the right to sue accrues.
limitation is provided
elsewhere in this schedule.

111 Section 31. Provisions as to barred or pending suits, etc...

(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such
commencement.

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142. For possession of [Twelve years] The date of the dispossession

immoveable property when the or discontinuance.
plaintiff, while in possession of
the property, has been
dispossessed or has
discontinued the possession.

Relevant dates

226. Before we enter upon the issue of limitation, it is necessary to recapitulate

the relevant dates bearing on the issue. They are as follows:

(i) On 29 December 1949, a preliminary order was passed under Section 145

of the CrPC 1898 by the Additional City Magistrate and while ordering

attachment, a receiver was appointed;

(ii) On 5 January 1950, the receiver took charge and made an inventory of the

attached properties;

(iii) On 16 January 1950, Suit 1 was instituted by Gopal Singh Visharad

seeking a declaration that he was entitled to worship and offer prayers at

the main Janmabhumi near the idols. On the same date, an ad interim

injunction was granted in the Suit;

(iv) On 19 January 1950, the ad interim injunction in Suit 1 was modified in the

following terms:

―The opposite parties are hereby restrained by means of

temporary injunction to refrain from removing the idols in
question from the site in dispute and from interfering with
puja etc. as at present carried on. The order dated
16.01.1950 stands modified accordingly.‖

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(v) On 3 March 1951, the order of temporary injunction dated 16 January

1950 as modified on 19 January 1950 was confirmed;

(vi) On 30 July 1953, the Additional City Magistrate passed the following order

in the proceedings under Section 145:

―The finding of the Civil Court will be binding on the

Criminal Court. It is no use starting proceedings in this
case under Section 145 Cr.P.C. and recording evidence
specially when a temporary injunction stands, as it cannot
be said that what may be the finding of this Court after
recording the evidence of parties. From the administrative
point of view the property is already under attachment and
no breach of peace can occur.
I, therefore, order that the file under Section 145 Cr.P.C. be
consigned to records as it is and will be taken out for
proceedings further when the temporary injunction is vacated.‖

(vii) On 31 July 1954, the Additional City Magistrate issued the following

directions:

―This file cannot be weeded as it is not a disposed of file.

How do you report that it will be weeded of?‖

(viii) On 26 April 1955, an appeal against the order dated 3 March 1951 under

Order XLIII, Rule 1(r) of the Code of Civil Procedure 1908 was dismissed

by the High Court; and

(ix) On 17 December 1959, Suit 3 was instituted by Nirmohi Akhara for a

decree against the receiver for handing over charge and management of

the temple.

Reasons of the High Court

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227. Justice S U Khan adduced the following reasons for holding that the suit

was not barred by limitation:

(i) First, the last order which was passed in the proceedings under Section

145 was on 30 July 1953 (except for an order in 1970 for replacing the

receiver on the death of the incumbent). This order and the subsequent

order of the Magistrate dated 31 July 1954 indicated that the proceedings

under Section 145 had not been dropped or finalised. In the event that the

Magistrate had passed some final order either after the dismissal of the

appeal against the order granting an interim injunction or on some other

date, it would have provided a fresh starting point for the purpose of

limitation to file a suit for a declaration;

(ii) Even if it were to be held that Suit 3 is barred by limitation, the rights and

entitlement of the contesting parties would have to be decided in Suit 1

which was instituted within the period of limitation. A decision on the title of

Nirmohi Akhara in Suit 1 would be sufficient for the purpose of Section

146(1) of the CrPC;

(iii) The demolition of the constructed portion of the premises on 6 December

1992, acquisition of the premises and the adjoining area by the Union

Government and the decision of the Supreme Court in Dr M Ismail

Faruqui v Union of India112, gave a fresh starting point for limitation. Even

if the remedy of all parties (except the plaintiff in Suit 1) was barred by

limitation, its rights still subsisted. The demolition of the structure gave a

fresh cause of action for a declaratory suit under Section 42 of the Specific

Relief Act 1877;

112 (1994) 6 SCC 360

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(iv) The receiver appointed under Section 145 of the Magistrate cannot hold

the property indefinitely after attachment. Hence, a liberal view would have

to be taken in the absence of which uncertainty would be created. Where

due to the attachment, a suit for possession could not be filed, Section 28

would not extinguish the rights of the parties. Moreover, the principle of a

continuing wrong under Section 23 of the Limitation Act 1908 was

applicable and Nirmohi Akhara was being constantly denied their right to

charge and management; and

(v) In any event, even if the suit was barred by limitation, the court was bound

to pronounce on all issues as required by Order XIV Rule 2(1) of the Code

of Civil Procedure 1908.

Justice Sudhir Agarwal adduced the following reasons for holding that Suit 3 was

barred by limitation:

(i) The cause of action for the Suit arose on 5 January 1950 upon the

receiver taking charge of the inner courtyard;

(ii) Suit 3 was confined to the premises of the inner courtyard. The plaintiffs in

their pleadings have neither sought a declaration of title nor have they

claimed to have been dispossessed illegally by anyone. The claim is that

the City Magistrate had illegally taken over management and charge of the

temple. The City Magistrate passed a statutory order under Section 145

and pursuant to the order of attachment the possession of the inner

courtyard was given to the receiver. An order of attachment under Section

145 could not constitute a deprivation of the right to possession of the real

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owner but the receiver is said to hold the property on behalf of the true

owner. There being no dispossession of Nirmohi Akhara, Article 142 had

no application; and

(iii) Article 47 is also not applicable. Hence, the issue of limitation was required

to be adjudicated upon with reference to Article 120. The suit was instituted

beyond the period of six years specified in Article 120 and hence was

barred by limitation.

Justice D V Sharma held that for the purposes of determining limitation in Suit 3,

Article 120 was applicable. Suit 3 was filed on 17 December 1959. The suit not

having been filed within six years of the accrual of the cause of action, it was

barred by limitation.

Submissions of Nirmohi Akhara

228. Mr S K Jain, learned Senior Counsel for the plaintiffs in Suit 3 made the

following submissions with respect to limitation:

I No final order has been passed in the proceedings under Section 145.

Hence, limitation under Article 47 of the Limitation Act 1908 has not

commenced:

(i) The cause of action in the Suit arose on 5 January 1950 when the

receiver took charge of the inner courtyard;

(ii) The Magistrate‘s order under Section 145 dated 29 December 1949

was a preliminary order and provided the cause of action. However,

the limitation for such a suit would commence only upon passing of

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a final order in the proceedings under Section 145. In the present

case, as noted by the Magistrate in the order dated 31 July 1954,

the proceedings under Section 145 had not been disposed of and

therefore, the final order had still not been passed. The

proceedings under Section 145 continue to remain pending; and

(iii) The suit is governed by Article 47 of the Limitation Act 1908. The

limitation of three years for a suit under Article 47 commences from

the date of the final order in the case. Under Article 47, the first

column contains the description of the suit and refers to a person

bound by an order respecting the possession of immovable

property made under the CrPC. The third column under Article 47

specifies the time from which limitation begins to run and mentions

the commencement of limitation from the date of the passing of the

final order. A suit that is categorised in the first column would be

governed only by that, unaffected by the use of the words in the

third column. The Limitation Act bars suits filed ―after‖ the limitation

period but does not prevent suits from being instituted ―before‖ the

period has commenced.

II Denial of Nirmohi Akhara‘s ‗absolute‘ shebaiti rights of management

and charge is a continuing wrong. By virtue of Section 23 of the

Limitation Act 1908, a fresh cause of action arose every day:

(i) The limitation for Suit 3 is governed by Article 142 as the plaintiffs

were dispossessed of their property. Article 142 is applicable when

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the suit is filed for possession of immovable property when the

plaintiff, while in possession of the property, has been dispossessed

or has discontinued the possession. The plaintiffs in Suit 3 had the

management and charge over the idols and the temple as they were

performing the puja, taking care of the pilgrims and performing other

duties. The rights to do puja, et al. i.e. the shebaiti rights are

attached to the possession of the immovable property. The plaintiff

relied on the following precedents to illustrate its proprietary interest

in the property:

(a) Angurbala Mullick v Debabrata Mullick127 where it was held

that a shebait enjoys some sort of right or interest in the

endowed property which partially at least has the character of

a proprietary right; and

(b) Commissioner, Hindu Religious Endowments v Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 128 where

it was held that in shebaitship both the elements of office and

property, of duties and personal interest are blended together.

The office of the Mahant has the character of a proprietary

right which, though anomalous to some extent, is still a

genuine legal right.

(ii) A suit for restoration of shebaiti rights would be for recovery of

possession and restoration of management. Article 142 would be

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attracted which provides a limitation of 12 years from the date of

dispossession;

(iii) The cause of action arose on 5 January 1949 by which Nirmohi

Akhara was denied its absolute right as a shebait and it continues to

be denied those rights. The obstruction of the plaintiff‘s right to

manage the bhog and prayers independently is a continuing wrong

under Section 23 of the Limitation Act and every obstruction

provides a fresh cause of action. Reliance was placed upon the

judgement of the Privy Council in Sir Seth Hukum Chand v

127
1951 SCR 1125
128
1954 SCR 1005
Maharaj Bahadur Singh113 where the obstruction of prayer and

worship has been held to be a continuing wrong.

III Article 120 of the Limitation Act 1908 is a residuary provision and is

applicable when no other provision, including Articles 47 and 142

applies. The doctrine of merger applies, and the preliminary order

dated 29 December 1949 passed under Section 145 merges with the

order dated 26 April 1955 by which the ad-interim injunction in Suit 1

was upheld by the High Court:

(i) The submission is on the assumption (without conceding) that

Articles 47 and 142 are not applicable and Article 120 applies;

(ii) By virtue of the doctrine of merger, the order of the Additional City

Magistrate dated 29 December 1949 in the proceedings under

113 (1933) 38 LW 306 (PC)

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Section 145 of the CrPC merged with the order of the High Court

dated 26 April 1955 in the appeal against the interim order to

maintain status quo in Suit 1. Therefore, the plaintiff‘s right to sue

accrued on 26 April 1955. Suit 3 which was filed on 17 December

1959 was within the period of limitation of six years. Reliance was

placed upon the decisions of this Court in:

(a) Chandi Prasad v Jagdish Prasad114, where it was held that

the doctrine of merger postulates that there cannot be more

than one operative decree governing the same subject-matter

at a given point of time. When the appellate court passes a

decree, the decree of the trial court merges with the decree of
the appellate court, irrespective of whether the appellate court

affirms, modifies or reverses the decree passed by the trial

court; and

(b) S S Rathore v State of Madhya Pradesh115, where it was

held that a decree of a court of first instance merges in the

decree passed in appeal.

IV In a suit for restoration of possession from a receiver, the question of

limitation can never arise and such suits can never be barred by

limitation.

114 (2004) 8 SCC 724

115 (1989) 4 SCC 582

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(i) So long as the property of a person from whom possession was

taken continues to be under a receiver, the question of limitation can

never arise; and

(ii) The property cannot remain custodia legis ad-infinitum and it is

incumbent for the court to adjudicate upon the issue of title and the

suit cannot be dismissed as barred by limitation.

V In determining the entitlement to mesne profits, the question of title

will have to be adjudicated upon and possession will have to be

delivered by the receiver to the true owner:

As the property is under the control of the receiver, a suit for mesne profits

for income derived by the receiver can be filed by the true owner and in

such a suit, any benefit which accrues would give rise to a continuing

cause of action.

VI It is the plaintiff‘s claim that Nirmohi Akhara is also the shebait of the

janmasthan and the idols. For the same reason that Suit 5 of 1989

was held to be within limitation i.e. the deity was a perpetual minor,

the suit of the plaintiff cannot be barred by limitation.

229. Mr K Parasaran, learned Senior Counsel for the plaintiffs in Suit 5 refuted

the submissions made by Mr S K Jain and made the following submissions with

respect to limitation and the maintainability of Suit 3:

I The Magistrate‘s order under Section 145 is an exercise of police powers

for securing peace and does not determine title or possession over

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the property. Since such an order does not purport to give

possession to any party, the question of Nirmohi Akahara being

dispossessed on account of an order in proceedings under Section

145 proceedings does not arise.

(i) An order under Section 145 is an exercise of police powers for

securing peace. It is only for preventing breach of peace and does

not determine the rights of parties with respect to title over property.

Section 145 proceedings simply freeze or protect the rights of the

rightful owner. An order of the Magistrate in exercise of the

executive function can never be a wrongful act or cause injury. The

order of a civil court cannot be considered as a ‗wrong‘ giving rise

to a cause of action. Only a judicial authority has the power to

decide whether the action of the civil court is wrong. Questions

relating to title and possession are exclusively matters for civil courts

and the Magistrate‘s order under Section 145 cannot oust the

jurisdiction of the civil court;

(ii) The proceedings under Section 145 are distinct and there exists no

bar for parties to file a civil suit for title or possession after the order

has been passed by the Magistrate. The jurisdiction of the civil court

is not curtailed by the order of the Magistrate under Section 145 and

civil proceedings can be pursued independently. Reliance was

placed upon the decisions of this Court in the following cases:

(i) Bhinka v Charan Singh132, where it was held that under Section

145(1), the Magistrate‘s jurisdiction is confined only to decide

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whether, any and if so, which of the parties was on the date of the

preliminary order in possession of the land in dispute. The order only

declares the actual possession of a party on a specified date and

does not purport to give possession or authorise any party to take

possession;

(ii) Jhummamal alias Devandas v State of Madhya

Pradesh133, where it was held that an order made under

Section 145 deals only with the factum of possession of the

party as on a particular day. It confers no title to remain in

possession of the disputed property. The unsuccessful party

therefore must get relief only in the civil court in a properly

constituted suit. A party may file a suit for declaration and

prove a better right to possession. The civil court has

132
1959 Supp (2) SCR 798
133
(1988) 4 SCC 452
jurisdiction to give a finding different from that which the

Magistrate has reached in the proceedings under Section

145; and

(iii) Deokuer v Sheoprasad Singh116, where it was held that in a

suit for declaration of title to property filed when the property

is attached under Section 145, it is not necessary to ask for

further relief of delivery of possession.

(iii) Mr S K Jain‘s submission in Suit 3 stating that the proceedings under

Section 145 have not attained finality and therefore, the limitation

116 (1965) 3 SCR 655

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under Article 47 cannot begin to run cannot be accepted. Irrespective

of the proceedings under Section 145, Nirmohi Akhara could

independently have filed a suit for title and possession.

II Section 3 of the Limitation Act 1908 provides that every suit instituted

after the period of limitation shall be dismissed. The Supreme Court

can dispose of appeals only on the ground of limitation. Unlike the

Trial Court that has to decide on all issues, the Supreme Court is not

bound to do so once it comes to the conclusion that a suit is barred

by limitation.

(i) Reliance was placed upon the decision of this Court in Yeswant

Deorao Deshmukh v Walchand Ramchand Kothari117, where it

was observed that the rules of equity have no application where

there are definitive statutory provisions specifying the grounds on

the basis of which alone stoppage or suspension of the running of

time can arise. While the courts necessarily are ―astute in

checkmating or fighting fraud‖, it should be equally borne in mind

that statutes of limitation are statutes of repose.

III The High Court‘s decision has to be set aside. The decree is contrary

to the law of pleadings. No prayer for a partition of land was sought

by Nirmohi Akhara. The High Court‘s order has not been passed in

pursuance of the ends of justice but is an end of justice.

117 (1950) SCR 852

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IV Section 28 of the Limitation Act 1908 extinguishes the substantive

rights of a person. Accordingly, if the party fails on the issue of

limitation, then it also fails on all other substantive issues and

therefore, this Court cannot give any relief to Nirmohi Akhara in Suit

3.

V Article 120 alone governs the suit filed by Nirmohi Akhara. Articles

142 and 144 of the Limitation Act are not applicable. Once limitation

starts to run, it cannot be stopped.

(i) Reliance was placed upon the decision of the Privy Council in Raja

Rajgan Maharaja Jagatjit Singh v Raja Partab Bahadur Singh118,

where it was held with regard to the statutory period of limitation,

that Article 47 does not apply, as there has been no order for

possession by the Magistrate under Section 145. In a suit for

declaration of title, Articles 142 and 144 do not apply and the suit is

governed by Article 120.

230. Dr Rajeev Dhavan, learned Senior Counsel for the plaintiff in Suit 4 made

the following submissions with respect to limitation of Suit 3:

I The relief which Nirmohi Akhara has sought in Suit 3 is for management

and charge. However in its plaint, it has claimed that Janmasthan

‗belongs‘ and ‗has always belonged to it‘ and the use of these terms

in a loose sense may in a given context be inferred as

‗possession‘, ‗ownership‘ and ‗implied title‘.

118 (1942) 2 Mad LJ 384

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(i) The relief sought by Nirmohi Akhara was only with respect to

management and charge of the idols of Lord Ram. The case of

Nirmohi Akhara is based on the deprivation of shebaiti rights by an

order under Section 145 of the CrPC 1898. The claim is against the

State for possession of usufruct and to render services to the deity.

Words such as ―belong‖ or ―belonging‖ have a flexible meaning.

Reliance was placed upon the decisions of this Court in:

(a) Late Nawab Sir Mir Osman Ali Khan v Commissioner of

Wealth Tax, Hyderabad137 in relation to the discussion on the

meaning of ‗belonging to‘; and

(b) Raja Mohammad Amir Ahmad Khan v Municipal Board

Sitapur138 in relation to the discussion on making unequivocal

assertions in the plaint and reading the plaint in its entirety to

decipher the true meaning.

(ii) Nirmohi Akhara had claimed in paragraph 2 of its plaint that the

Jamnasthan belongs and has always belonged to it. Further, it has

137
1986 Supp SCC 700
138
AIR 1965 SC 1923
been claimed in paragraph 4 of the plaint that the temple has been

in the possession of the plaintiff. However, in the written

submissions, the plaintiff has adverted to a claim of ownership and

possession.

(iii) Use of the terms ‗belongs‘ or ‗belonging to‘ may in a given context be

inferred as ‗possession‘, ‗ownership‘ and ‗implied title‘. The term

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‗belongs‘ or ‗belonging to‘ is not a term of art and does not have a

definitive meaning. Its interpretation can be open.

II Nirmohi Akhara is using the term ‗belongs‘ to claim title and obviate

the bar of limitation. The term ‗belongs‘ should be given its ordinary

meaning. If Nirmohi Akhara claims title for itself then it is at odds with

the suit of the deity. It can only claim ancillary rights:

(i) Nirmohi Akhara merely claims to serve the idol and is not claiming

the idol itself. Nirmohi Akhara is claiming a duty and not the right to

ownership and title. Accordingly, only Article 120 can apply; and

(ii) Unlike the law of trusts in the United Kingdom, in India, no

ownership or title devolves upon the shebait. The shebait is not the

owner of the property of the idol.

III Nirmohi Akhara has used the proceedings under Section 145 to urge

that the action of the government in denying them absolute shebait

rights is a continuing wrong:

(i) Section 145 proceedings are not for determining claims for title or

ownership. Nothing prevented Nirmohi Akhara from filing a

declaratory suit for possession and title; and

(ii) The specific date pleaded of when the cause of action arose was 5

January 1950. Where the law has interfered to take away

possession under the order of the Magistrate, the period of six years

started on that date and there was no scope for invoking a

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continuing wrong because the action was complete, and remedies

lay elsewhere.

Having adverted to the submissions which were urged by the learned Senior

Counsel on the issue of whether Suit 3 is barred by limitation, we now proceed to

analyse various provisions of the CrPC 1898 and Articles of the Limitation Act

1908.

Nature and Scope of Section 145 proceedings

231. The Magistrate attached the property by an order dated 29 December

1949 made under Section 145 of the CrPC 1898. The plaintiffs in Suit 3 state that

the cause of action arose on 5 January 1950 when the receiver took charge of

the property and they were denied charge and management of the temple.

232. Section 145 was included in Chapter XII of the Code of 1898, titled

―Disputes as to Immovable Property‖. Section 145 states thus:

―Section 145. Procedure where dispute concerning land,

etc., is likely to cause breach of peace

(1) Whenever a District Magistrate, Sub-Divisional

Magistrate or Magistrate of the first class is satisfied from a
police report or other information that a dispute likely to cause
a breach of the peace exists concerning any land or water or
the boundaries thereof, within the local limits of his
jurisdiction, he shall make an order in writing, stating the
grounds of his being so satisfied, and requiring the parties
concerned in such dispute to attend his Court in person or by
pleader, within a time to be fixed by such Magistrate, and to
put in written statements of their respective claims as
respects the fact of actual possession of the subject of
dispute.

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(2) For the purposes of this section the expression "land

or water" includes building, markets, fisheries, crops
or other produce of land, and the rents or profits of
any such property. (3) A copy of the order shall be
served in the manner provided by this Code for the
service of a summons upon such person or persons
as the Magistrate may direct, and at least one copy
shall be published by being affixed to some
conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the
merits of the claims of any of such parties to a right to
possess the subject of dispute, peruse the statements so put
in, hear the parties, receive all such evidence as may be
produced by them respectively, consider the effect of such
evidence, take such further evidence (if any) as he thinks
necessary, and, if possible, decide whether any and which of
the parties was at the date of the order before mentioned in
such possession of the said subject:
Provided that, if it appears to the Magistrate that any party
has within two months next before the date of such order
been forcibly and wrongfully dispossessed, he may treat the
party so dispossessed as if he had been in possession at
such date:
Provided also, that if the Magistrate considers the case one
of emergency, he may at any time attach the subject of
dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so
required to attend, or any other person interested, from
showing that no such dispute as aforesaid exists or has
existed; and in such case the Magistrate shall cancel his said
order, and all further proceedings thereon shall be stayed,
but, subject to such cancellation, the order of the Magistrate
under sub-section (1) shall be final.
(6) If the Magistrate decides that one of the parties was
or should under the first proviso to sub-section (4) be treated
as being in such possession of the said subject, he shall
issue an order declaring such party to be entitled to
possession thereof until evicted therefrom in due course of
law, and forbidding all disturbance of such possession until
such eviction and when he proceeds under the first proviso to
sub-section (4), may restore to possession the party forcibly
and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the
Magistrate may cause the legal representative of the
deceased party to be made a party to the proceeding and
shall thereupon continue the inquiry, and if any question
arises as to who the legal representative of a deceased party
for the purpose of such proceeding is, all persons claiming to
be representatives of the deceased party shall be made
parties thereto.

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(8) If the Magistrate is of opinion that any crop or other

produce of the property, the subject of dispute in a proceeding
under this section pending before him, is subject to speedy
and natural decay, he may make an order for the proper
custody or sale of such property, and, upon the completion of
the inquiry, shall make such order for the disposal of such
property, or the sale-proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the
proceedings under this section, on the application of either
party, issue a summons to any witness directing him to attend
or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in
derogation of the powers of the Magistrate to proceed under
section 107.‖

Section 145 is recognised to be a branch of the preventive jurisdiction of the

Magistrate.119 Section 145(1) can be invoked on the satisfaction of the Magistrate

that ―a dispute likely to cause a breach of the peace exists…‖. The provision

relates to disputes regarding possession of land or water or its boundaries which

may result in breach of the peace. The function of the Magistrate is not to go into

questions of title, but to meet the urgency of the situation by maintaining the party

in possession. The Magistrate is empowered to call upon the parties to put in

written statements in support of their claim to ―actual possession‖. Such an

order is to be served as a summons upon the parties. The Magistrate is to peruse

the statements, hear the parties and weigh the evidence, in order to ascertain

who was in possession at the date of the order. The Magistrate may make that

determination ―if possible‖ to do so. Moreover, the determination is about the

factum of possession on the date of the order ―without reference to the merits of

the claim of any of such parties to a right to possess the subject of the dispute‖.

These words indicate that the Magistrate does not decide or adjudicate upon the

119 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20 th edition (2016) at page 426

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contesting rights to possess or the merits of conflicting claims. The Magistrate is

concerned with determining only who was in possession on the date of the order.

If possession has been wrongfully taken within two months of the order, the

person so dispossessed is to be taken as the person in possession. In cases of

emergency, the Magistrate can attach the subject of the dispute, pending

decision. The action ultimately contemplated under Section 145 is not punitive,

but preventive, and for that purpose is provisional only till a final or formal

adjudication of rights is done by a competent court in the due course of law.

Thus, nothing affecting the past, present and future rights of parties is

contemplated under the provision.

233. The object of the provision is merely to maintain law and order and to

prevent a breach of the peace by maintaining one or other of the parties in

possession, which the Magistrate finds they had immediately before the dispute,

until the actual right of one of the parties has been determined by a civil court. 120

The object is to take the subject of dispute out of the hands of the disputants,

allowing the custodian to protect the right, until one of the parties has established

her right (if any) to possession in a civil court. 141 This is evident from the

provisions of sub-section (6) of Section 146. The Magistrate declares the party

which is entitled to possession ―until evicted therefrom in due course of law.‖

While proceeding under the first proviso, the Magistrate may restore possession

to a party which has been wrongfully and forcibly dispossessed. No party can be

allowed to use the provisions of Section 145 for ulterior purposes or as a

120 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20 th edition (2016) at page 427

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substitute for civil remedies. The jurisdiction and power of the civil court cannot in

any manner be hampered.142

234. This Court has analysed the nature and scope of proceedings under

Section 145 in the following cases:

(i) In Bhinka v Charan Singh143, the respondent, claimed the lands in dispute

―to be his sir‖, while the appellants claimed to be in possession of the

lands as hereditary tenants. The Magistrate initiated proceedings under

Section 145, attached the lands in dispute and directed them to be placed

in possession of a superdgidar pending disposal of those proceedings.

After enquiries, the Magistrate concluded that the appellants were entitled

to be in possession until evicted in due course of law. Thereafter, the

respondent filed a suit before the Revenue Courts. The appeal before the

Supreme Court arose from that proceeding. One of the issues before this

Court was whether the appellants had taken possession in accordance

with the provisions of Section 145. Justice Subba Rao, speaking for a

three judge

141
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20 th edition (2016) at page 427 142

Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20 th edition (2016) at page 451

143
1959 Supp (2) SCR 798
Bench of this Court, held thus:

―16… Under Section 145(6) of the Code, a Magistrate is

authorized to issue an order declaring a party to be entitled to
possession of a land until evicted therefrom in due course of
law. The Magistrate does not purport to decide a party's
title or right to possession of the land but expressly
reserves that question to be decided in due course of
law. The foundation of his jurisdiction is on apprehension

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of the breach of the peace, and, with that object, he

makes a temporary order irrespective of the rights of the
parties, which will have to be agitated and disposed of in
the manner provided by law. The life of the said order is
co-terminus with the passing of a decree by a civil court
and the moment a civil court makes an order of eviction,
it displaces the order of the criminal court. The Privy
Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani
[(1901) LR 29 IA 24, 33] tersely states the effect of orders
under Section 145 of the Code of Criminal Procedure thus:
―These orders are merely police orders made to prevent
breaches of the peace. They decide no question of title…
‖.
We, therefore, hold that a provisional order of a Magistrate in
regard to possession irrespective of the rights of the parties
cannot enable a person to resist the suit under Section 180
of the Act.‖
(Emphasis supplied)

(ii) In R H Bhutani v Miss Mani J Desai121, the appellant entered into a leave

and license agreement with the first respondent to occupy a cabin owned

by her. When a dispute over increase in compensation arose between the

parties, the first respondent sought to evict the appellant and also hand

over the possession of the cabin to the second and third respondents.

Thereafter, the appellant filed an application under Section 145 and the

Magistrate commenced the proceedings. While the proceedings were

pending, the respondent filed a civil suit. The Magistrate concluded that

appellant was in actual possession of the cabin and had been forcibly

dispossessed. In the Revision Petition before the High Court, the

Magistrate‘s order was set aside and it was held that the Magistrate had

breached the scope of his powers under Section 145. The order of the

High Court was assailed before this Court, which set aside the order of the

High Court and restored the order of the Magistrate. Justice JM Shelat,

121 (1969) 1 SCR 80

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speaking for a three judge Bench of this Court discussed the scope of

proceedings under Section 145 if the following terms:

―8. The object of Section 145, no doubt, is to prevent

breach of peace and for that end to provide a speedy
remedy by bringing the parties before the court and
ascertaining who of them was in actual possession and
to maintain status quo until their rights are determined by
a competent court… The enquiry under Section 145 is
limited to the question as to who was in actual
possession on the date of the preliminary order
irrespective of the rights of the parties.‖
(Emphasis supplied)

(iii) In Shanti Kumar Panda v Shakuntala Devi122, there was a dispute

between the parties regarding a shop. Proceedings under Section 145

were commenced on the basis of a complaint filed by the appellant and the

Magistrate attached the property. The respondent, who claimed to be

interested in the subject-matter of the dispute was not allowed to be

impleaded in the proceedings. The final order under Section 145 was in

favour of the appellant. Revision petitions against the order were

dismissed. Thereafter, the respondent filed a civil suit and secured an

injunction. The injunction was however, vacated by the District Court on

the ground that since Section 145 proceedings had terminated in the

appellant‘s favour, the Trial Court was not justified in issuing the injunction

unless and until the order of the Magistrate was superseded by a civil

court‘s decree and no injunction could be granted while the property was

‗custodia legis‘. The High Court reversed the District Court‘s order. The

decision of the High Court was assailed before this Court. A three judge

Bench of this Court dismissed the appeal and dealt with the nature of
122 (2004) 1 SCC 438

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proceedings under Section 145. Justice J M Shelat, speaking for the Court

held:

―10. The proceedings under Sections 145/146 of the Code

have been held to be quasi-civil, quasi-criminal in nature or
an executive or police action. The purpose of the provisions is
to provide a speedy and summary remedy so as to prevent a
breach of the peace by submitting the dispute to the
Executive Magistrate for resolution as between the parties
disputing the question of possession over the property. The
Magistrate having taken cognizance of the dispute would
confine himself to ascertaining which of the disputing parties
was in possession by reference to the date of the preliminary
order or within two months next before the said date, as
referred to in the proviso to sub-section (4) of Section 145 and
maintain the status quo as to possession until the entitlement
to possession was determined by a court, having competence
to enter into adjudication of civil rights, which an Executive
Magistrate cannot. The Executive Magistrate would not take
cognizance of the dispute if it is referable only to ownership or
right to possession and is not over possession simpliciter…‖

The Court in the following observations dealt with the interplay between the order

of a Magistrate and the jurisdiction of a civil court:

―15. It is well settled that a decision by a criminal court does

not bind the civil court while a decision by the civil court binds
the criminal court. (See Sarkar on Evidence, 15th Edn., p.
845.) A decision given under Section 145 of the Code has
relevance and is admissible in evidence to show: (i) that there
was a dispute relating to a particular property; (ii) that the
dispute was between the particular parties; (iii) that such
dispute led to the passing of a preliminary order under
Section 145(1) or an attachment under Section 146(1), on the
given date; and (iv) that the Magistrate found one of the
parties to be in possession or fictional possession of the
disputed property on the date of the preliminary order. The
reasoning recorded by the Magistrate or other findings
arrived at by him have no relevance and are not
admissible in evidence before the competent court and
the competent court is not bound by the findings arrived
at by the Magistrate even on the question of possession
though, as between the parties, the order of the
Magistrate would be evidence of possession. The finding
recorded by the Magistrate does not bind the court. The
competent court has jurisdiction and would be justified in

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arriving at a finding inconsistent with the one arrived at

by the Executive Magistrate even on the question of
possession.‖
(Emphasis supplied)

The Court held that the order passed by the Magistrate will not be treated as

binding even the interlocutory jurisdiction of the civil court under Order XXXIX of

the Code of Civil Procedure:

―22…The civil court shall also respect such order and will be
loath to arrive at an interim arrangement inconsistent with the
one made by the Executive Magistrate. However, this is far
from holding that the civil court does not have
jurisdiction to make an order of injunction inconsistent
with the order of the Executive Magistrate. The
jurisdiction is there but the same shall be exercised not
as a rule but as an exception. There may be cases such
as one where the order of the Executive Magistrate can
be shown to be without jurisdiction, palpably wrong or
containing self-contradictory findings. For example, the
Magistrate may have made an order treating the party
dispossessed beyond two months to be as in
possession. There may be cases where in spite of the
order made by the Executive Magistrate based on the
evidence adduced before it, the competent court, based
on the material produced before such court, may be
inclined to hold that prima facie a very strong case for
retaining or placing one of the parties in possession of
the suit property is made out or where it will be totally
unjust or inequitable to continue one party in possession
of the property as ordered by the Executive Magistrate. In
such exceptional situations, the competent court (which will
mostly be a civil court) may have jurisdiction for granting an
order of injunction in departure from the findings recorded and
the declaration made by the Executive Magistrate under
Section 145 of the Code of Criminal Procedure. The order
under Section 146 of the Code would not pose a problem of
that magnitude. Inasmuch as the property is under
attachment and is placed in the hands of a receiver, the civil
court can comfortably examine whether it would be just and
expedient to continue with the attachment and with the same
receiver or to appoint another receiver or to make some other
interim arrangement during the pendency of the civil suit.‖

(Emphasis supplied)

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(iv) In Surinder Pal Kaur v Satpal123, reliance was placed upon the decision in

Shanti Kumar Panda. Justice Dipak Misra (as the learned Chief Justice

then was) speaking for the two judge Bench, held thus:

―10... It is a settled position of law that the observations

made in the proceedings drawn under Section 145 CrPC do not bind the
competent court in a legal proceeding initiated before it.‖

235. Section 145 proceedings do not purport to decide a party's title or right to

possession of the land. The property held in attachment in proceedings under

Section 145 is ‗custodia legis‘. Hence, it is not necessary to secure possession

from a party who is not in possession and is hence, not in a position to deliver

possession. This Court has analysed the nature of the property under attachment

in the following decisions:

(i) In Deokuer v Sheoprasad Singh124, a three judge Bench of this Court,

held that property held under attachment under Section 145 is ‗custodia

legis‘. The appeal arose out of a suit brought by the appellants in 1947 for

a declaration that the respondents had acquired no right or title to a

property under certain deeds and that the deeds were inoperative and

void. The suit was decreed by the Trial Court, but on appeal, the High

Court set aside the decree. The High Court held that as the appellants

were not in possession of the property at the date of the suit, their suit

must fail under the proviso to Section 42 of the Specific Relief Act as they

had failed to ask for the further relief of recovery of possession from the

respondents. On the date of the suit, the property in dispute had been

attached by the Magistrate, exercising his powers under Section 145 and

123 (2015) 13 SCC 25

124 (1965) 3 SCR 655

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was not in the possession of any party. The issue that arose before this

Court was whether in view of the attachment, the appellants could have in

their suit, sought the relief for delivery of possession to them. Speaking for

the three judge Bench, Justice A K Sarkar held thus:

―4. In our view, in a suit for declaration of title to property

filed when it stands attached under Section 145 of the Code,
it is not necessary to ask for the further relief of delivery of
possession. The fact, if it be so, that in the case of such an
attachment, the Magistrate holds possession on behalf of the
party whom he ultimately finds to have been in possession is,
in our opinion, irrelevant. On the question however whether
the Magistrate actually does so or not, it is unnecessary 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 possession to
the plaintiff it is not necessary for the plaintiff in a suit for a
declaration of title to property to claim possession: see
Sunder Singh — Mallah Singh Sanatan Dharam High School,
Trust v. Managing Committee, Sunder Singh-Mallah Singh
Rajput High School [(1957) LR 65 IA 106] . Now it is obvious
that in the present case, the respondents were not in
possession after the attachment and were not in a position to
deliver possession to the appellants. The Magistrate was in
possession, for whomsoever, it does not matter, and he was
not of course a party to the suit. It is pertinent to observe that
in Nawab Humayun Begam v. Nawab Shah Mohammad Khan
[AIR (1943) PC 94] it has been held that the further relief
contemplated by the proviso to Section 42 of the Specific
Relief Act is relief against the defendant only. We may add
that in K. Sundaresa Iyer v. Sarvajana Sowkiabil Virdhi Nidhi
Ltd. [(1939) ILR Mad 986] it was held that it was not
necessary to ask for possession when property was in
custodia legis. There is no doubt that property under
attachment under Section 145 of the Code is in custodia
legis. These cases clearly establish that it was not necessary
for the appellants to have asked for possession.‖

(ii) In Shanti Kumar Panda, this Court formulated the legal principles

governing the effect of the order of a Magistrate under Section 145/146

when legal proceedings are instituted before a court of competent

jurisdiction:

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―(1) The words ―competent court‖ as used in sub-section

(1) of Section 146 of the Code do not necessarily mean a civil
court only. A competent court is one which has the
jurisdictional competence to determine the question of title or
the rights of the parties with regard to the entitlement as to
possession over the property forming the subject-matter of
proceedings before the Executive Magistrate:
(2) A party unsuccessful in an order under Section 145(1)
would initiate proceedings in a competent court to establish
its entitlement to possession over the disputed property
against the successful party. Ordinarily, a relief of recovery of
possession would be appropriate to be sought for. In legal
proceedings initiated before a competent
court consequent upon attachment under Section 146(1)
of the Code it is not necessary to seek relief of recovery
of possession. As the property is held custodia legis by
the Magistrate for and on behalf of the party who would
ultimately succeed from the court, it would suffice if only
determination of the rights with regard to the entitlement
to the possession is sought for. Such a suit shall not be
bad for not asking for the relief of possession.
(3) A decision by a criminal court does not bind the civil
court while a decision by the civil court binds the criminal
court. An order passed by the Executive Magistrate in
proceedings under Sections 145/146 of the Code is an order
by a criminal court and that too based on a summary enquiry.
The order is entitled to respect and weight before the
competent court at the interlocutory stage. At the stage of
final adjudication of rights, which would be on the evidence
adduced before the court, the order of the Magistrate is only
one out of several pieces of evidence.
(4) The court will be loath to issue an order of interim
injunction or to order an interim arrangement inconsistent with
the one made by the Executive Magistrate. However, to say
so is merely stating a rule of caution or restraint, on exercise
of discretion by court, dictated by prudence and regard for the
urgent/emergent executive orders made within jurisdiction by
their makers; and certainly not a tab on the power of court.
The court does have jurisdiction to make an interim order
including an order of ad interim injunction inconsistent with
the order of the Executive Magistrate. The jurisdiction is there
but the same shall be exercised not as a rule but as an
exception. Even at the stage of passing an ad interim order
the party unsuccessful before the Executive Magistrate may
on material placed before the court succeed in making out a
strong prima facie case demonstrating the findings of the
Executive Magistrate to be without jurisdiction, palpably
wrong or self-inconsistent in which or the like cases the court
may, after recording its reasons and satisfaction, make an
order inconsistent with, or in departure from, the one made by

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the Executive Magistrate. The order of the court — final or

interlocutory, would have the effect of declaring one of the
parties entitled to possession and evicting therefrom the party
successful before the Executive Magistrate within the
meaning of sub-section (6) of Section 145.‖
(Emphasis supplied)

The above formulation is essentially a restatement of the principles which emerge

from a consistent line of precedent of the Court [See also Jhummamal alias

Devandas v State of Madhya Pradesh125.]

236. Where a suit is instituted for possession or for declaration of title before a

competent civil court, the proceedings under Section 145 should not continue.

This Court has analysed the above proposition of law in the following cases:

(i) In Amresh Tiwari v Lalta Prasad Dubey126, Justice S N Variava,

speaking for a three judge Bench of this Court held thus:

―12… The law on this subject-matter has been settled by

the decision of this Court in the case of Ram Sumer Puri
Mahant v. State of U.P. [(1985) 1 SCC 427 : 1985 SCC (Cri)
98] In this case it has been held as follows: (SCC pp. 428-29,
para 2)
―When a civil litigation is pending for the property wherein
the question of possession is involved and has been
adjudicated, we see hardly any justification for initiating a
parallel criminal proceeding under Section 145 of the Code.
There is no scope to doubt or dispute the position that the
decree of the civil court is binding on the criminal court in a
matter like the one before us…parallel proceedings should
not be permitted to continue and in the event of a decree of
the civil court, the criminal court should not be allowed to
invoke its jurisdiction particularly when possession is being
examined by the civil court and parties are in a position to
approach the civil court for interim orders such as injunction
or appointment of receiver for adequate protection of the
property during pendency of the dispute. Multiplicity of

125 (1988) 4 SCC 452

126 (2000) 4 SCC 440

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litigation is not in the interest of the parties nor should public

time be allowed to be wasted over meaningless litigation. We
are, therefore, satisfied that parallel proceedings should not
continue….‖

The Court rejected the submission that the principle in Ram Sumer Puri Mahant

v State of UP127 will apply only after the civil court has adjudicated on the issue:

―13. We are unable to accept the submission that the

principles laid down in Ram Sumer case [(1985) 1 SCC 427 :
1985 SCC (Cri) 98] would only apply if the civil court has
already adjudicated on the dispute regarding the property and
given a finding. In our view Ram Sumer case [(1985) 1 SCC
427 : 1985 SCC (Cri) 98] is laying down that multiplicity of
litigation should be avoided as it is not in the interest of the
parties and public time would be wasted over meaningless
litigation. On this principle it has been held that when
possession is being examined by the civil court and parties
are in a position to approach the civil court for adequate
protection of the property during the pendency of the dispute,
the parallel proceedings i.e. Section 145 proceedings should
not continue.‖

Dealing with the issue as to when the proceedings under Section 145 should not

be pursued any further on the institution of a suit for adjudication, this Court held:

―14. Reliance has been placed on the case of Jhummamal v.

State of M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri) 974] It is
submitted that this authority lays down that merely because a
civil suit is pending does not mean that proceedings under
Section 145 of the Criminal Procedure Code should be set at
naught. In our view this authority does not lay down any such
broad proposition. In this case the proceedings under Section
145 of the Criminal Procedure Code had resulted in a
concluded order. Thereafter the party, who had lost, filed civil
proceedings. After filing the civil proceedings he prayed that
the final order passed in the Section 145 proceedings be
quashed. It is in that context that this Court held that merely
because a civil suit had been filed did not mean that the
concluded order under Section 145 of the Criminal Procedure
Code should be quashed. This is entirely a different situation.
In this case the civil suit had been filed first. An order of status
quo had already been passed by the competent civil court.
Thereafter Section 145 proceedings were commenced. No
final order had been passed in the proceedings under Section

127 (1985) 1 SCC 427

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145. In our view on the facts of the present case the ratio laid
down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC
(Cri) 98] fully applies. We clarify that we are not stating that
in every case where a civil suit is filed, Section 145
proceedings would never lie. It is only in cases where
civil suit is for possession or for declaration of title in
respect of the same property and where reliefs regarding
protection of the property concerned can be applied for
and granted by the civil court that proceedings under
Section 145 should not be allowed to continue. This is
because the civil court is competent to decide the
question of title as well as possession between the
parties and the orders of the civil court would be binding
on the Magistrate.‖
(Emphasis supplied)

Having set out the position established in law with respect to Section 145

proceedings, we now advert to the application of the law to the set of facts in the

present case. The provisions of Section 145 can be invoked only when there is a

danger of a breach of peace. The jurisdiction of the Magistrate does not extend to

adjudicate into disputed questions of title. The Magistrate has been vested with

the authority to meet the urgency of the situation and maintain peace. The

determination of the Magistrate is confined to which party was in actual

possession on the date of the order. The real purpose is to decide who has actual

physical possession and not legal possession supported by title over the land. To

initiate proceedings under Section 145, the Magistrate has to be satisfied of the

existence of a dispute which is likely to cause a breach of peace. The enquiry by

the Magistrate is of a summary nature, the object being to ensure tranquillity in

the locality when the dispute is likely to result in a breach of peace.

237. On 29 December 1949, a preliminary order under sub-section (1) of

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Section 145 was issued by the Additional City Magistrate, Faizabad-cumAyodhya.

Simultaneously an order of attachment was also passed under the second

proviso to sub-section (4) treating the situation to be one of emergency. On 5

January 1950, the receiver took charge and made an inventory of the attached

items. Pursuant to the order of the Magistrate, only two or three pujaris were

permitted to go inside the place where idols were kept to perform religious

ceremonies like bhog and puja and the general public was permitted to have

darshan only from beyond the grill-brick wall. The proceedings under Section 145

were not judicial; the Magistrate while exercising authority under the provision

was not empowered to deal with the substantive rights of the parties. The

proceedings under Section 145 are not akin to a civil proceeding. Adjudication of

substantive claims over title and ownership over a property can be decided in a

competent civil proceeding. Proceedings under Section 145 are not in the nature

of a trial before a civil court and are merely in the nature of police proceedings.

The Magistrate‘s order cannot adversely impact the substantive rights of parties.

Upon the attachment of the property and after the appointment of the receiver,

the property became custodia legis and the receiver held the property for the

benefit of the true owner. The receiver so appointed could not be described as a

party interested in the dispute. By his subsequent orders dated 30 July 1953 and

31 July 1954, the Magistrate deferred the proceedings and continued the order of

attachment.

238. Justice Sudhir Agarwal correctly observed that in view of the ad-interim

injunction in Suit 1 by which status quo was ordered and sewa-puja was

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continued, the proceedings under Section 145 could not have been

dropped as it would have disturbed the status quo. Justice Agarwal

observed:

―2244. … From perusal of injunction order passed by the

Civil Court, we find that on 16th January, 1950 a simple
order, in terms of the prayer made in the interim
injunction application, was passed directing the parties
to maintain status quo. Thereafter on 19th January, 1950,
the order was modified but the Civil Court did not appoint
a Receiver of its own and also did not direct the City
Magistrate to get the possession transferred to any other
person or another Receiver of the Court instead of the
Receiver appointed by the Magistrate. On the contrary, in
Suit-1, the City Magistrate was also impleaded as one of
the defendants and the Civil Court passed an order
directing the defendants to maintain status quo. It also
clarified that the Sewa, Puja as was going on, shall
continue…the Magistrate could not have ignored this
order by dropping the proceedings as that would have
resulted in discharge of Receiver and release of the
property attached and placed in his charge. In other
words, it could have been construed by the Civil Judge
as an order disobeying the order of status quo. Had the
Civil Judge passed an order appointing a Court's
Receiver and directing the Magistrate to hand over
possession of the property to him, the position might
have been different. In these circumstances, if the
Magistrate did not drop the proceedings but deferred it,
we find no fault on his part. Moreover, when the earlier
order of the Magistrate, attaching the property and placing it
in the charge of Receiver, could not have resulted in giving a
cause of action to the plaintiffs to file suit, we fail to
understand as to how the subsequent order, which merely
deferred the pending proceedings, would lend any help. The
order of attachment passed by the Magistrate itself does not
give a cause of action and on the contrary it only makes the
things known to the party that there appears to be some
dispute about the title and/or possession of the property
concerned and also there is apprehension of disturbance of
public peace and order. The cause of action virtually is known
to the party that there exists some dispute and not the order
of the Magistrate whereby he attached the property in
question and placed it in the charge of the Receiver.‖
(Emphasis supplied)

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239. In view of the settled position in law, as it emerges from the decisions of

this Court, after the Magistrate‘s order dated 29 December 1949 for

attachment of property, nothing prevented Nirmohi Akhara from filing a

declaratory suit for possession and title. The Magistrate‘s order did not

decide or adjudicate upon the contesting rights to possess or the merits of

conflicting claims of any of the parties. Substantive rights with respect to

title and possession of the property could have been dealt with only in civil

proceedings before a civil court. The

Magistrate did not have jurisdiction to determine questions of ownership and title.

The proceedings under Section 145 could not have resulted in any adjudication

upon title or possession of the rightful owner as that is within the exclusive

domain of civil courts. Nirmohi Akhara cannot take the defence that no final order

had been passed in Section 145 proceedings and as a result limitation did not

commence. The Magistrate simply complied with the directions given by a civil

court with respect to maintaining status quo in Suit 1 and accordingly, deferred

the proceedings under Section 145.

The case under Article 142 of the Limitation Act 1898

240. Article 142 governs a suit for possession of immoveable property when the

plaintiff while in possession has been dispossessed or ―has discontinued

the possession‖. The period of limitation under Article 142 is 12 years.

Time begins to run from the date of the dispossession or discontinuance.

Nirmohi Akhara claims that the cause of action arose on 5 January 1950

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and the suit which was instituted on 17 December 1959 is within the

limitation of twelve years.

The concepts of dispossession and discontinuance of possession

241. Besides the absence of specific relief in Nirmohi‘s Suit with respect to

seeking possession of the Janmasthan temple, there is another aspect to

be explored with respect to the applicability of the concepts of

dispossession and discontinuance of possession in the facts of the present

case. Article 142 of the Limitation Act 1908 encompasses a suit for

possession of immovable property. It covers those suits for possession of

immoveable property which fall within either of two descriptions. The first is

when the plaintiff while in possession of the property has been

dispossessed. The second covers a situation where the plaintiff while in

possession has discontinued the possession. In other words, Article 142

which deals with suits for possession of immoveable property qualifies this

with the requirement that the plaintiff should have been in possession of

the property when either of the two events have taken place namely, the

event of being dispossessed or, as the case may be, the event of having

discontinued the possession. Article 142 has not confined the description

of the suit to simply a suit for possession of immoveable property. The

provision incorporates a requirement of prior possession of the plaintiff and

either the dispossession or the discontinuance of possession while the

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plaintiff was in possession. The period of limitation is 12 years and time

begins to run from the date of dispossession or discontinuance.

242. Article 144 is a residuary provision dealing with suits for possession of

immoveable property or any interest in immoveable property not

specifically provided for elsewhere. As a residuary provision, Article 144

applies to suits for possession of immoveable property which do not fall

within a description which is specially enumerated in the articles of the

schedule. In the case of Article 144, the period of limitation is 12 years and

time begins to run when the possession of the defendant has become

adverse to the plaintiff.

243. Article 142, as seen above, incorporates two distinct concepts. The first is

of dispossession and the second is of discontinuance of possession.

Dispossession connotes an ouster; it involves a situation where a person

is deprived of her/his possession with the coming of another person into

possession. Dispossession implies deprivation of a right to possess which

is not voluntary and involves an act of ouster which displaces the person

who was in possession of the property. The expression ‗dispossession‘ is

defined in Black‘s Law Dictionary128 as follows:

―Deprivation of, or eviction from, rightful possession of

property; the wrongful taking or withholding of possession of
land from the person lawfully entitled to it; ouster.‖

The expressions ‗discontinuance‘ and ‗dispossession‘ have been defined in P

Ramanatha Aiyar‘s Advanced Law Lexicon129:

128 Black‘s Law Dictionary, Tenth Edition at p. 572

129 P Ramanantha Aiyar‘s Advanced Law Lexicon, Fifth Edition at pgs. 1537 and 1563

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―Discontinuance means that a person in possession goes

out and is followed into possession by another person. It
implies that all indications of occupation have been
withdrawn.‖ ―Dispossession or ouster is wrongfully taking
possession of land from its rightful owner. The dispossession
applies only to cases where the owner of land has, by the act
of some person, been deprived altogether of his dominion
over the land itself, or the receipt of its profits. A person
cannot be dispossessed of immoveable property unless he
was
possessed thereof at the time.‖

Dispossession presupposes the pre-existing possession of the person at a given

time who was subsequently dispossessed. A person who is not in possession

cannot be said to be dispossessed. Discontinuance on the other hand, embodies

a notion of abandonment of possession and is sometimes described as a

voluntary act of the person who discontinues possession on his own accord. G W

Paton130 in his seminal treatise on ―Jurisprudence‖ notes that ―as with most

words in the English language, the word ‗possession‘ has a variety of uses and a

variety of meanings, depending upon context and use‖. The author tells us that

―the search for one appropriate, complete meaning for the word is likely to be a

fruitless one‖.

Black‘s Law Dictionary131 defines the expression ‗possession‘ thus:

―1. The fact of having or holding property in one‘s power;

the exercise of dominion over property.
2. The right under which one may exercise control over
something to the exclusion of all others; the continuing
exercise of a claim to the exclusive use of a material object.‖
In Supdt and Remembrancer of Legal Affairs West Bengal v Anil Kumar

Bhunja132, this Court observed that ―possession is a polymorphous term‖ and,

130 G. W. Paton and David P. Derham, A Text-book of Jurisprudence, 3 rd Edition, Oxford: Clarendon Press
(1964)
131 Black‘s Law Dictionary, Tenth Edition at page 1351
132 (1979) 4 SCC 274

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therefore, it was not possible to ascribe a meaning which would apply in every

context. Drawing sustenance from Salmond‘s Jurisprudence, the Court noted that

possession implies a right and a fact; the right to enjoy annexed to the right to

property and the fact of the real intention. Possession as a concept comprehends

―corpus possessionis and animus possidendi‖. The former embraces the power

to use the thing in possession and the existence of a ground of expectation that

the use of the possession shall not be interfered with. The latter postulates the

intent to appropriate to oneself the exclusive use of the thing which is possessed.

244. In Shyam Sunder Prasad v Raj Pal Singh133, this Court speaking through a

Bench of three judges elaborated on the distinction between Articles 142 and

144 of the Limitation Act 1908. The Court observed:

―3…Under the old Limitation Act, all suits for possession

whether based on title or on the ground of previous
possession were governed by Article 142 wherein the plaintiff
while in possession was dispossessed or discontinued in
possession. Where the case was not one of dispossession of
the plaintiff or discontinuance of possession by him, Article
142 did not apply. Suits based on title alone and not on
possession or discontinuance of possession were governed
by Article 144 unless they were specifically provided for by
some other articles. Therefore, for application of Article 142,
the suit is not only on the basis of title but also for
possession.‖

245. In order to bring the suit within the purview of Article 142, the following

requirements must be fulfilled:

(i) The suit must be for possession of immoveable property;

(ii) The plaintiff must establish having been in possession of the property; and

133 (1995) 1 SCC 311

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(iii) The plaintiff should have been dispossessed or must have discontinued

possession while in possession of the property.

For Article 142 to apply, these requirements must cumulatively be established.

246. The Suit by Nirmohi Akhara postulates that the Janmasthan, commonly

known as Janmabhumi, which is the birth-place of Lord Ram ―belongs and has

always belonged‖ to Nirmohi Akhara which has been ―managing it and receiving

offerings‖. According to the plaintiffs, the temple has ever since been in the

possession of Nirmohi Akhara. The grievance in the Suit is that the plaintiffs were

wrongfully deprived of their management and charge of the temple as a result of

the order of attachment under Section 145 and the proceedings have been

unduly prolonged by the Magistrate with the connivance to the Muslim parties.

Nirmohi Akhara prays for the removal of the receiver from management and

charge and for delivering it to the plaintiffs. Essentially, it is on the basis of the

expressions ―belongs‖ in paragraph 2 and ―possession‖ in paragraph 4 of the

pleadings that Nirmohi Akhara has sought to bring the suit within the purview of

Article 142 (and hence, outside the purview of residuary Article 120).

247. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the

Sunni Central Waqf Board, has made a painstaking effort to demonstrate how a

careful attempt has been made on behalf of Nirmohi Akhara to travel beyond the

pleadings and more specifically the relief which has been claimed in the suit by

seeking to expand the scope of the suit in the written submissions.

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248. In our view, it would be instructive having set out the ambit of Suit 3, to

demonstrate how the written submissions attempt (through the craft of Counsel)

to change the nature of the suit in order to bring it within limitation. As a matter of

first principle, the plaint must be read as a whole. However, this is quite distinct

from permitting the plaintiff to a suit to alter its nature on the basis of written

submissions in appeal. Any alteration in the content of a plaint can only take

place by an amendment under Order VI Rule 17 of the CPC. Instead, as we shall

see, an ingenious effort has been made to gloss over the contents of the suit in

the written submissions. This is impermissible. Mr S K Jain, learned Senior

Counsel appearing on behalf of the plaintiff in Suit 3, made the following

submission in paragraph 13(d) of his written submissions:

―(d) The plaintiff – Nirmohi Akhara was not only claiming

ownership and possession of the property i.e. the Main
Temple or the Inner Courtyard but was also claiming to be the
Manager (Shebiat) of ―Janma Asthan‖ as well as the idols of
Lord Ram Chandra, Laxmanji, Hanumanji and Saligramji.‖
(Emphasis supplied)

In paragraph 17(j) of the written submissions, it has been urged:

―(j) Since the property was attached and placed under a
receiver, it is incumbent for the court to decide and
adjudicate the issue of title and the suits cannot be
dismissed as barred by limitation. The property must revert to
the rightful owner and cannot remain custodia legis for time
ad-infinitum. Hence in a suit for restoration of possession
from a receiver, the question of limitation can never arise and
such suits cannot (sic) never become barred by limitation so
long as such property continues to be under a receiver at
least of a person from whom possession was taken.‖
(Emphasis supplied)

Again, in paragraph 18(k), it has been stated:

―(k). Since the property is under the control of the receiver,

a suit for mesne profits for incomes derived by the receiver
can still be filed by the true owner and in such a suit, for

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which cause of action arises any benefit accrues would thus

give rise to a continuous cause of action. While determining
the issue of entitlement of mesne profits, the question of
title will have to be adjudicated and upon adjudication
possession will have to be delivered by the receiver to the
true owner.
(i) Ellappa Naicken vs Lakshmana Naicken AIR 1949
Madras 71
(ii) Rajab of Venkatagiri v. Isakapalli Subbiah, ILR 26
Madras 410.‖ (Emphasis supplied)

Then, in paragraph 18(m), it has been stated:

―(m) The plaintiff – Nirmohi Akhara was not only claiming

ownership and possession of the property i.e. the Main
Temple or the Inner Courtyard but was also claiming to the
Manager (Shebiat) of ―Janma Asthan‘ as well as the idols of
Lord Ram Chandra, Laxmanji, Hanumanji and Sabgramji. It is
stated for the reasons which found favour with the court to hold
that the suit OOS No. 5 of 1989 is within limitation that the
deity was a perpetual minor, the suit of the plaintiff Nirmohi
Akhara cannot also be held to be barred by limitation.‖
(Emphasis supplied)

Finally, it has been stated in paragraph 18 that:

―18. The claim of the property ―belonging‖ to the plaintiff in

the plaint is based on two-fold submissions – (i) that the
property belongs to the plaintiff in the capacity of
manager/shebait; and (ii) that the Plaintiff being in
possession acquires possessory title in view of Section
110 Evidence Act and is entitled to be and continue in
possession unless the
defendant can show a better title than the Plaintiff.‖
(Emphasis supplied)

This is completely at variance with the pleadigns in the suit.

249. The expression ―belonging to‖ is not a term of art and its content varies

according to context. In Raja Mohammad Amir Ahmad Khan v Municipal

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Board of Sitapur134, a three judge Bench of this Court considered whether the

use of the expression ―belonging to him‖ by a tenant amounted to a disclaimer

of the reversionary interest of the Government. In that context, Justice N

Rajagopala Ayyangar, speaking for the three judge Bench, observed:

―24…Though the word ―belonging‖ no doubt is capable of
denoting an absolute title, is nevertheless not confined to
connoting that sense. Even possession of an interest less
than that of full ownership could signified by that word. In
Webster ―belong to‖ is explained as meaning inter alia ―to
be owned by, be the possession of‖. The precise sense which
the word was meant to convey can therefore be gathered only
by reading the document as a whole and adverting to the
context in which it occurs.‖

On the facts of the case, it was held that the circumstances of the tenancy were

material for determining the nature of the assertion. The origin of the tenancy was

not definitely known, the lessee had constructed super structures and the

appellant and his ancestors had been enjoying the property for three quarters of

a century and more. Transfers had been affected and the property had been the

subject of inheritance. There was a public document to the effect that though it

was government land, there was a permanent heritable and transferable right. In

this context, it was held that use of the word ―belonging‖ did not amount to

repudiation of the title of the government. Similarly, the Court held that the use of

the expression owner did not denote ownership in an absolute sense so as to

amount to a renunciation or disclaimer of tenancy:

―25…Though divorced from the context these words are

capable of being construed as an assertion of absolute
ownership, they cannot, in our opinion, in the setting in which
they occur and bearing in mind the history of the enjoyment
by the appellant and his predecessors of this property, be
deemed an assertion unequivocal in nature of absolute

134 AIR 1965 SC 1923

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ownership sufficient to entail a forfeiture of a permanent

tenancy of this nature. In this connection it might be noticed
that this enjoyment is stated to be with the consent of the
Government. If the assertion were understood to be as an
absolute owner in derogation of the rights of the Government
as landlord, the reference to the consent of Government to
such an enjoyment would be wholly inappropriate. Consent
would have relevance only if the Government had interest in
the property and we, therefore, understand the passage to
mean that the permanent, transferable and heritable,
particularly the right to transfer which was being denied by
the municipality, was stated to have been enjoyed with the
consent of the Government. That is an additional reason for
our holding that at the worst the assertion was not
unequivocal as to entail a forfeiture of the tenancy.‖

250. In Late Nawab Sir Mir Osman Ali Khan v Commissioner of Wealth

Tax158, a two judge Bench of this Court construed the expression ―belonging to

the assessee on the valuation date‖ in Section 2(m) of the Wealth Tax Act 1957.

In the context of the statutory provision which was being interpreted, this Court

held that mere possession without a legal right would not bring the property within

the meaning of the expression ―net-wealth‖ for it would not be an asset which

belongs to the assessee. The Court adverted to the decision in Raja Mohammad

noting that though the phrase ―belonging to‖ was capable of denoting an

absolute title, it was nevertheless not confined to connoting that sense. In the

case at hand, the Court held:

―29…We have discussed the cases where the distinction

between ―belonging to‖ and ―ownership‖
has been considered. The following facts emerge here: (1)
the assessee has parted with the possession which is one of
the essentials of ownership. (2) The assessee was disentitled
to recover possession from the vendee and the assessee
alone until the document of title is executed was entitled to sue
for possession against others i.e. other than the vendee in
possession in this case. The title in rem vested in the
assessee. (3) The vendee was in rightful possession against

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158
1986 Supp SCC 700
the vendor. (4) The legal title, however, belonged to the
vendor. (5) The assessee had not the totality of the rights that
constitute title but a mere husk of it and a very important
element of the husk.‖

Both these decisions, which have been pressed in aid by Dr Dhavan indicate that

the expression ‗belonging to‘ must receive a meaning based on context. In a

given context, the words may convey the meaning of an absolute title but in other

factual situations the words may convey something which falls short of an

absolute interest.

251. In the present case, it is evident that the use of the expression ‗belongs‘

by the Nirmohi Akhara in the plaint has been deployed only in the context

of management and charge. The entire case of Nirmohi Akhara is of the

deprivation of its shebaiti rights by the Magistrate‘s order under Section

145. The claim of Nirmohi Akhara is against the state so as to enable the

plaintiff to utilise the usufruct to render services to the deity. Nirmohi

Akhara, in other words, claims ancillary rights with reference to

management and charge. Indeed, the most significant aspect which

emerges from the relief which has been claimed in Suit 3 is a decree for

the removal of the first defendant ―from the management and charge of

the said temple of Janmabhumi and for delivering the same to the plaintiff‖.

Suit 3 filed by Nirmohi Akhara is therefore not a suit for possession which

falls within the meaning and ambit of Article 142.

252. Nirmohi Akhara has instituted Suit 3 claiming to be a shebait. A four judge

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Bench of this Court in Angurbala Mullick v Debabrata Mullick159 dealt with the

159
1951 SCR 1125
nature and position of a shebait. Justice B K Mukherjea (as he then was)

speaking for the Court held that the position of a shebait in regard to the debutter

property does not exactly correspond to that of a trustee in English law. In English

law, the legal estate in trust property vests in the trustee. On the other hand, in

the case of a Hindu religious endowment, the ownership of the dedicated

property is transferred to the deity or institution as a juristic person and the

shebait is a mere manager who handles the affairs with respect to the deity‘s

properties. Referring to the extract from the Privy Council‘s decision in Vidya

Varuthi Thirtha v Balusami Ayyar160, this Court observed that though, the

shebait is a manager and not a trustee, shebaitship is not a ‗mere office‘:

―12…The shebait has not only duties to discharge in

connection with the endowment, but he has a beneficial
interest in the debutter property. As the Judicial Committee
observed in the above case, in almost all such endowments
the shebait has a share in the usufruct of the debutter
property which depends upon the terms of the grant or upon
custom or usage. Even where no emoluments are attached to
the office of the shebait, he enjoys some sort of right or
interest in the endowed property which partially at least has
the character of a proprietary right. Thus, in the conception of
shebaiti both the elements of office and property, of duties
and personal interest, are mixed up and blended together;
and one of the elements cannot be detached from the other. It
is the presence of this personal or beneficial interest in the
endowed property which invests shebaitship with the
character of proprietary rights and attaches to it the legal
incidents of property.‖

253. A Constitution Bench of this Court speaking through Chief Justice B K

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Mukherjea in Commissioner, Hindu Religious Endowments Madras v Sri

Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt161, construed the position of

160
AIR 1922 PC 123
161
1954 SCR 1005
a Matadhipati. Adverting to the earlier decision in Angurbala Mullick, this Court

held that as in the case of a shebait so also in a case involving a mahant, both

elements of office and property are blended together:

―11. As regards the property rights of a Mathadhipati, it may

not be possible to say in view of the pronouncements of the
Judicial Committee, which have been accepted as good law
in this country ever since 1921, that a Mathadhipati holds the
Math property as a life tenant or that his position is similar to
that of a Hindu widow in respect to her husband's estate or of
an English Bishop holding a benefice. He is certainly not a
trustee in the strict sense. He may be, as the Privy Council
[ Vide Vidya Varuthi v. Balusami, 48 IA 302] says, a manager
or custodian of the institution who has to discharge the duties
of a trustee and is answerable as such; but he is not a mere
manager and it would not be right to describe Mahantship as
a mere office. A superior of a Math has not only duties to
discharge in connection with the endowment but he has a
personal interest of a beneficial character which is sanctioned
by custom and is much larger than that of a Shebait in the
debutter property. It was held by a Full Bench of the Calcutta
High Court [ Vide Monahar v. Bhupendra, 60 Cal 452] that
Shebaitship itself is property, and this decision was approved
of by the Judicial Committee in Ganesh v. Lal Behary [63 IA
448] and again in Bhabatarini v. Ashalata [70 IA 57]. The
effect of the first two decisions, as the Privy Council pointed
out in the last case, was to emphasise the proprietary element
in the Shebaiti right and to show that though in some respects
an anomaly, it was an anomaly to be accepted as having
been admitted into Hindu law from an early date. This view
was adopted in its entirety by this Court in Angurbala v.
Debabrata [1951 SCR 1125] and what was said in that case
in respect to Shebaiti right could, with equal propriety, be
applied to the office of a Mahant. Thus, in the conception of
Mahantship, as in Shebaitship, both the elements of office
and property, of duties and personal interest are blended
together and neither can be detached from the other. The
personal or beneficial interest of the Mahant in the
endowments attached to an institution is manifested in his
large powers of disposal and administration and his right to

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create derivative tenures in respect to endowed properties;

and these and other rights of a similar character invest the
office of the Mahant with the character of proprietary right
which, though anomalous to some extent, is still a genuine
legal right. It is true that the Mahantship is not heritable like
ordinary property, but that is because of its peculiar nature
and the fact that the office is generally held by an ascetic,
whose connection with his natural family being completely cut
off, the ordinary rules of succession do not apply.‖

The claim of Nirmohi Akhara for management and charge therefore rests on its

assertion of being a shebait. In the case of a shebait as the above decisions

authoritatively explained, the elements of office and of a proprietary interest are

blended together. The Suit by Nirmohi Akhara was a suit for restoration of

management and charge so as to enable the Akhara to have the benefit of the

usufruct in the discharge of its obligations towards the deity. The suit was

therefore not a suit for possession within the meaning of Article 142. Despite the

ingenuity of counsel in seeking to expand the nature and ambit of the suit, we are

categorically of the view that written submissions filed in the appeal cannot be a

valid basis to reconfigure the nature of the suit. The suit has to be read on the

basis of the original plaint in the trial court. Despite the amendment to the plaint in

Suit 3, the relief as it stands does not bring it within the ambit of Article 142. It

may also be noted at this stage that during the course of the submissions, Mr S K

Jain, clarified that Nirmohi Akhara by using the expression ―belongs to‖ is not

claiming title or ownership to the property. The Suit by Nirmohi Akhara is not a

suit for possession. Hence, neither Article 142 nor Article 144 has any

application.

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254. In Ramiah v N Narayana Reddy135, a two judge Bench of this Court

elaborated on the distinction between Articles 142 and 144 of the Limitation Act

1908 (corresponding to Articles 64 and 65 of the Limitation Act 1963) thus:

―9…Article 64 of the Limitation Act, 1963 (Article 142 of the

Limitation Act, 1908) is restricted to suits for possession on
dispossession or discontinuance of possession. In order to
bring a suit within the purview of that article, it must be shown
that the suit is in terms as well as in substance based on the
allegation of the plaintiff having been in possession and having
subsequently lost the possession either by dispossession or by
discontinuance. Article 65 of the Limitation Act, 1963 (Article
144 of the Limitation Act, 1908), on the other hand, is a
residuary article applying to suits for possession not otherwise
provided for. Suits based on the plaintiff's title in which there is
no allegation of prior possession and subsequent
dispossession alone can fall within Article 65. The question
whether the article of limitation applicable to a particular suit is
Article 64 or Article 65, has to be decided by reference to
pleadings.‖

There is a fundamental reason why the Suit instituted by Nirmohi Akhara is not

maintainable, quite apart from the bar of limitation. Nirmohi Akhara sought a relief

simpliciter of the handing over of management and charge of the Janmasthan by

the receiver to it. The receiver was appointed by the Magistrate in the

proceedings under Section 145. The Magistrate who attached the property holds

it for the true owner who obtains an adjudication of rights before the court of

competent jurisdiction. Nirmohi Akhara sought no declaration of its status or

rights. It merely sought a decree against a Magistrate for the handing over of

management and charge. It had to seek relief against someone interested in

opposing its claim and by getting its own right adjudicated. Instead, without doing

so, it merely sought a decree for the handing over of management and charge

against the Magistrate. Such a suit was indeed not maintainable.

135 (2004) 7 SCC 541

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255. Once it has been held that neither Article 47 nor Article 142 is attracted, Suit

3 filed by Nirmohi Akhara is governed by the provisions of Article 120, the

residuary article in the Limitation Act 1908. The period of limitation under Article

120 is six years. Nirmohi Akhara claims that the cause of action arose on 5

January 1950. The suit was instituted on 17 December 1959. Hence, the suit is

outside the prescribed period of limitation and is barred.

Continuing wrong

256. The alternate submission which has been urged on behalf of the Nirmohi

Akhara by Mr S K Jain is based on the provisions of Section 23 of the Limitation

Act 1908. It is submitted that the denial or obstruction of Nirmohi Akhara‘s

‗absolute‘ shebait rights of management and charge is a continuing wrong and

by virtue of Section 23, a fresh cause of action arose every day. Section 23 reads

as follows:

―23. Continuing breaches and wrongs. - In the case of a

continuing breach of contract and in the case of a continuing
wrong independent of contract, a fresh period of limitation
begins to run at every moment of the time during which the
breach or the wrong, as the case may be, continues.‖

257. The contention of Mr S K Jain is that upon the order of attachment, the

charge and management, along with property related rights of the

Janmasthan temple have been taken over and are the subject matter of

Suit 3. This, it is urged, constitutes a continuing wrong so long as they are

not restored. In this context, reliance has been placed on the decision of

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the Privy Council in Sir Seth Hukum Chand v Maharaj Bahadur Singh136,

in support of the submission that obstruction of prayer and worship is a

continuing wrong. The submission is that the obstruction of the plaintiffs‘

right to manage the bhog and prayers

independently, as a result of the appointment of a receiver is a continuing wrong

within the meaning of Section 23 and hence, every act of obstruction provides a
fresh cause of action and a fresh starting point for limitation.

258. The decision in Hukum Chand, involved a contest between the

Swetambari and Digambari Jain sects over the right of worship of Parasnath hill.

The Swetambaris acquired the proprietary rights of the Raja of Palgunj in the hill

by purchase. They commenced the construction of dwellings for watchmen on

the top of the hill and for other temple employees, besides constructing

dharamsalas. This was objected to by the Digambaris who instituted a suit

against the Swetambaris claiming that the entire hill was sacred. There were

Charans in the old shrines containing impressions of the footprints of saints,

bearing a lotus mark. The Swetambaris evolved another form of Charan which

was opposed by the Digambaris who refused to worship it as being a

representation of a detached part of the human body. Both the lower courts held

that the action of placing the Charans in the shrines was wrong in respect of

which the Digambaris were entitled to complain. One of the questions which

arose before the Privy Council was in regard to the finding of the Subordinate

judge that the suit brought by the Digambaris was within limitation. In that

context, Sir John Wallis delivering the judgment of the Privy Council held:
136 (1933) 38 LW 306 (PC)

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―As regards limitation the Subordinate Judge held on rather

insufficient grounds that the acts complained of took place
within six years of suit so that this part of the claim could not
be barred by Article 120, but he also held that it could not be
barred under that article as it was a continuing wrong, as to
which under section 23 of the Limitation Act a fresh period
begins to run at every moment of the day on which the wrong
continues. The High Court on the other hand were of opinion
that it was not a continuing wrong and that the claim was
barred under article 120. In their Lordships' opinion the
Subordinate Judge was right 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 by
the decision of this Board in Rajrup Koer v. Abul Hossein
[(1880) I.L.R. 6 Cal. 394 : L.R. 7 I.A. 240.] , of diverting an
artificial water course and cutting off the watersupply of the
plaintiff's lower lying lands.‖

259. The above extract has been relied upon in support of the submission that a

deprivation of the right to worship is a continuing wrong. Significantly, the

Privy

Council relied upon its earlier decision in Maharani Rajroop Koer v Syed Abul

Hossein137 which involved an asserted right to an artificial water-course by

cutting of the water supply of the lands belonging to the plaintiffs. In Maharani

Rajroop Koer, the Privy Council held, speaking through Sir Montague E Smith,

that obstructions which interfered with the flow of water to the plaintiff were in the

nature of continuing nuisances:

―If the Judges really meant to apply the limitation of Article

34 above referred to, their decision is clearly wrong; for the
obstructions which interfered with the flow of water to the
Plaintiff's mehal were in the nature of continuing nuisances,
as to which the cause of action was renewed de die in diem
so long as the obstructions causing such interference were
allowed to continue. Indeed, sect. 24 of the statute contains
express provision to that effect.‖

137 (1879-80) 7 IA 240

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260. The notion of what constitutes a continuing wrong has evolved through the

decisions of this Court, depending on the factual context involved in each

case. The decision of two judges in State of Bihar v Deokaran Nenshi138,

dealt with the provisions of Sections 66 and 79 of the Mines Act 1952.

Section 66 provides a penalty for an omission to file a return which may

extend to Rs. 1000/-. However, Section 79 stipulates that no court shall

take cognizance of any offence unless a complaint is filed within six

months from the date of the alleged commission of offence or within six

months from the date on which the alleged commission of offence came to

the knowledge of the inspector, whichever is later. However, the

explanation stipulates that if the offence is a continuing offence, the

limitation shall be computed with reference to every point of time during

which the offence continued. Under regulation 3, annual returns in the

preceding year were required to be filed on or before the twenty-first day of

January each year. Dealing with the question of limitation, this Court

considered whether an offence involving a failure to file a return is covered

by the substantive part of Section 79 (in which case the complaint was

time barred) or by the explanation, involving a continuing offence. Justice J

M Shelat, speaking for the

Bench observed:
―5. A continuing offence is one which is susceptible of
continuance and is distinguishable from the one which is
committed once and for all. It is one of those offences which
arises out of a failure to obey or comply with a rule or its
requirement and which involves a penalty, the liability for
which continues until the rule or its requirement is obeyed or
complied with. On every occasion that such disobedience or

138 (1972) 2 SCC 890

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non-compliance occurs and reoccurs, there is the offence

committed. The distinction between the two kinds of offences
is between an act or omission which constitutes an offence
once and for all and an act or omission which continues, and
therefore, constitutes a fresh offence every time or occasion
on which it continues.‖

The Court held that the infringement occurred upon the failure to file annual

returns on or before January 21 of the relevant year and was complete on the

owner failing to furnish the annual returns by that day. The Court held that the

provision does not stipulate that the owner or manager would be guilty if he

continues to carry on the mine without furnishing the returns or that the offence

continues until the requirement of regulation 3 is complied with. In other words:

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―9…As in the case of a construction of a wall in violation of

a rule of a bye-law of a local body, the offence would be
complete once and for all as soon as such construction is
made, a default occurs in furnishing the returns by the
prescribed date.‖

261. Another decision of a two judge of this Court in Commissioner of Wealth

Tax, Amritsar v Suresh Seth139, was based on the provisions of the Wealth Tax

Act. Section 18(1)(a) provided for the levy of a penalty for failure to file a return of

net-wealth without reasonable cause. The issue before this Court was whether

the default in filing a return amounts to a continuing wrong. Justice E S

Venkataramiah (as the learned Chief Justice then was) speaking for this Court

held:

―11. A liability in law ordinarily arises out of an act of

commission or an act of omission. When a person does an
act, which law prohibits him from doing it and attaches a
penalty for doing it, he is stated to have committed an act of
commission 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 have committed an act of
omission which is also a wrong in the eye of law. Ordinarily a
wrongful act or failure to perform an act required by law to be
done becomes a completed act of commission or of omission,
as the case may be, as soon as the wrongful act is committed
in the former case and when the time prescribed by law to
perform an act expires in the latter case and the liability
arising therefrom gets fastened as soon as the act of
commission or of omission is completed.‖

This Court made a distinction between a continuing wrong and a wrong or default

which is complete when it is committed in the following observations:

―11…The distinctive nature of a continuing wrong is that the

law that is violated makes the wrongdoer continuously liable
for penalty. A wrong or default which is complete but whose
139 (1981) 2 SCC 790

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effect may continue to be felt even after its completion is,

however, not a continuing wrong or default.‖

Dealing with the provisions of the statute, this Court held that the default is only

one which takes place on the expiry of the last date of filing a return and is not a

continuing wrong. Consequently, the default does not give rise to a fresh cause of

action every day. Indicating in the following passage illustrations of continuing

wrongs, the Court held:

―17. The true principle appears to be that where the wrong

complained of is the omission to perform a positive duty
requiring a person to do a certain act the test to determine
whether such a wrong is a continuing one is whether the duty
in question is one which requires him to continue to do that
act. Breach of a covenant to keep the premises in good
repair, breach of a continuing guarantee, obstruction to a right
of way, obstruction to the right of a person to the unobstructed
flow of water, refusal by a man to maintain his wife and
children whom he is bound to maintain under law and the
carrying on of mining operations or the running of a factory
without complying with the measures intended for the safety
and well-being of workmen may be illustrations of continuing
breaches or wrongs giving rise to civil or criminal liability, as
the case may be, de die in diem.‖

In the view of this Court, non-performance of any of the acts mentioned in

Section 18(1)(a) gives rise to a single breach and to a single penalty, the

measure of which however relates to the time lag between the last date on which

the return has to be filed and the date on which it is actually filed.

262. The provisions of another revenue statute, the Income Tax Act 1961 came

up for consideration before a three judge Bench of this Court in Maya Rani Punj

v CIT140. In this case, Section 271(1)(a) of the Income Tax Act 1961 entailed
140 (1986) 1 SCC 445

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imposing a penalty for filing late returns. The penalty was imposable not only for

the first default but as long as the default continued. The assessee filed its return

more than seven months after the due date. The three judge Bench disapproved

of the decision in Suresh Seth. Justice Sabyasachi Mukherji (as the learned

Chief Justice then was) held that the default continued so long as a return was

not filed and was hence a continuing wrong:

―19. The imposition of penalty not confined to the first default

but with reference to the continued default is obviously on the
footing that non-compliance with the obligation of making a
return is an infraction as long as the default continued.
Without sanction of law no penalty is imposable with
reference to the defaulting conduct. The position that penalty
is imposable not only for the first default but as long as the
default continues and 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 law he continues to
be guilty of the infraction and exposes himself to the penalty
provided by law.‖

263. The application of the principle of continuing wrong in the context of

service jurisprudence came up before a two judge Bench of this Court in Union

of India v Tarsem Singh141. In that case, the respondent was invalidated out of

the Indian Army on medical grounds in November 1983. He approached the High

Court in 1999 seeking disability pension. The High Court issued a mandamus for

the payment of disability pension but restricted it to a period of 38 months prior to

the institution of the writ petition. The claim of the respondent however was that

disability pension should be granted with effect from November 1983 which was

allowed by the Division Bench of the High Court in a Letters Patent Appeal. In a

141 (2008) 8 SCC 648

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challenge before this Court to the above decision of the Division Bench of the

High Court, Justice R V Raveendran, speaking for the two judge Bench,

observed that to the principle that a belated service claim is liable to be rejected

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on the ground of delay and laches, there is a settled exception in relation to a

continuing wrong. However, there is a further exception to the exception where

the grievance is in respect of a decision which is liable to affect others in the

service prejudicially. This Court held:

―7. To summarise, normally, a belated service-related claim

will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation (where
remedy is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service-related claim is
based on a continuing wrong, relief can be granted even if
there is a long delay in seeking remedy, with reference to the
date on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury. But
there is an exception to the exception. If the grievance is in
respect of any order or administrative decision which related to
or affected several others also, and if the reopening of the
issue would affect the settled rights of third parties, then the
claim will not be entertained. For example, if the issue relates
to payment or re-fixation of pay or pension, relief may be
granted in spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to seniority or
promotion, etc., affecting others, delay would render the claim
stale and doctrine of laches/limitation will be applied. Insofar as
the consequential relief of recovery of arrears for a past period
is concerned, the principles relating
to recurring/successive wrongs will apply.‖

The High Court in appeal was held not to be justified in directing the payment of

arrears for the payment beyond three years before the institution of the writ

petition.

264. Many of the above judgments have adverted to a three judge Bench

decision in Balakrishna Savalram Pujari Waghmare v Shree Dhyaneshwar

Maharaj Sansthan169. The appellants claimed rights of hereditary worshippers in

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169
1959 Supp (2) SCR 476

a religious institution and that their ancestors were in possession of a temple and

in the management of its affairs including the worship of a shrine. The trustees

dismissed some pujaris for misconduct. Meantime, in 1922, the pujaris obtained

forcible possession of the temple. The trustees instituted a suit which resulted in

a decree. Possession of the temple was recovered in execution of the decree.

Later, the pujaris instituted a suit claiming hereditary rights under the religious

institution. In an appeal arising from the decree in the suit, the High Court held

that Article 120 of the Limitation Act applied, and the suit had been initiated

beyond the period of six years prescribed by the article. In appeal before this

Court, it was urged that the suit was not barred under Article 120 because

Section 23 of the Limitation Act applied, the conduct of the trustees being a

continuing wrong. While considering the argument, Justice PB Gajendragadkar

(as the learned Chief Justice then was) held:

―31… In dealing with this argument it is necessary to bear in

mind that Section 23 refers not to a continuing right but to a
continuing wrong. It is the very essence of a continuing wrong
that it is an act which creates a continuing source of injury and
renders the doer of the act responsible and liable for the
continuance of the said injury. If the wrongful act causes an
injury which is complete, there is no continuing wrong even
though the damage resulting from the act may continue. If,
however, a wrongful act is of such a character that the injury
caused by it itself continues, then the act constitutes a
continuing wrong. In this connection it is necessary to draw a
distinction between the injury caused by the wrongful act and
what may be described as the effect of the said injury. It is only
in regard to acts which can be properly characterised as
continuing wrongs that Section 23 can be invoked.‖

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265. This Court held that the act of the trustees in discontinuing the alleged

rights of the appellants as hereditary worshippers and in claiming and obtaining

possession from them in the suit in 1922 could not held to be a continuing wrong.

The Court held that the decree obtained by the trustees, had effectively and

completely injured the rights of the appellants though the damage may have

subsequently continued. Upon the execution of the decree, the rights of the

appellants were completely injured and though their dispossession continued, it

was held not to constitute a continuing wrong. In that context, the Court noted:

―We think there can be no doubt that where the wrongful act
complained of amounts to ouster, the resulting injury to the
right is complete at the date of the ouster and so there would
be no scope for the application of Section 23 in such a case.
That is the view which the High Court has taken and we see
no reason to differ from it.‖

This Court distinguished the decision of the Privy Council in Maharani Rajroop

Koer v Syed Abul Hossein142 on the ground that it was a case where a

continuing obstruction caused to the flow of water was held to be in the nature of

continuing nuisances. Similarly, the decision in Sir Seth Hukum Chand v

Maharaj Bahadur Singh143 relied on the earlier decision in Maharani Rajroop

Koer. Distinguishing the decision, this Court held that the action which was

impugned did not amount to ouster or complete dispossession of the plaintiffs.

266. A continuing wrong, as this Court held in Balakrishna Savalram is an act

which creates a continuing source of injury. This makes the doer of the act liable

for the continuance of the injury. However, where a wrongful act amounts to an

142 (1879-80) 7 IA 240

143 (1933) 38 LW 306 (PC)

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ouster, as in the present case, the resulting injury is complete on the date of the

ouster itself. A wrong or default as a result of which the injury is complete is not a

continuing wrong or default even though its effect continues to be felt despite its

completion.

267. The submission of Nirmohi Akhara is based on the principle of continuing

wrong as a defence to a plea of limitation. In assessing the submission, a

distinction must be made between the source of a legal injury and the effect of

the injury. The source of a legal injury is founded in a breach of an obligation. A

continuing wrong arises where there is an obligation imposed by law, agreement

or otherwise to continue to act or to desist from acting in a particular manner. The

breach of such an obligation extends beyond a single completed act or omission.

The breach is of a continuing nature, giving rise to a legal injury which assumes

the nature of a continuing wrong. For a continuing wrong to arise, there must in

the first place be a wrong which is actionable because in the absence of a wrong,

there can be no continuing wrong. It is when there is a wrong that a further line of

enquiry of whether there is a continuing wrong would arise. Without a wrong

there cannot be a continuing wrong. A wrong postulates a breach of an obligation

imposed on an individual, where positive or negative, to act or desist from acting

in a particular manner. The obligation on one individual finds a corresponding

reflection of a right which inheres in another. A continuing wrong postulates a

breach of a continuing duty or a breach of an obligation which is of a continuing

nature. This indeed was the basis on which the three judge Bench in Maya Rani

Punj approved the statement in a decision of the Calcutta High Court in the

following terms:

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―In G.D. Bhattar v. State [AIR 1957 Cal 483 : 61 CWN 660 :
1957 Cri LJ 834] it was pointed out that a continuing offence
or a continuing wrong is after all a continuing breach of the
duty which itself is continuing. If a duty continues from day to
day, the non-performance of that duty from day to day is a
continuing wrong.‖

Hence, in evaluating whether there is a continuing wrong within the meaning of

Section 23, the mere fact that the effect of the injury caused has continued is not

sufficient to constitute it as a continuing wrong. For instance, when the wrong is

complete as a result of the act or omission which is complained of, no continuing

wrong arises even though the effect or damage that is sustained may enure in

the future. What makes a wrong, a wrong of a continuing nature is the breach of

a duty which has not ceased but which continues to subsist. The breach of such

a duty creates a continuing wrong and hence a defence to a plea of limitation.

268. In the present case, there are several difficulties in accepting the

submission of Nirmohi Akhara that there was a continuing wrong. First and

foremost, the purpose and object of the order of the Magistrate under Section

145 is to prevent a breach of peace by securing possession, as the Magistrate

finds, on the date of the order. The Magistrate does not adjudicate upon rights

nor does the proceeding culminate into a decision on a question of title. The

order of the Magistrate is subordinate to the decree or order of a civil court.

Hence, to postulate that the order of the Magistrate would give rise to a wrong

and consequently to a continuing wrong is inherently fallacious. Secondly, would

the surreptitious installation of the idols on the night between 22 and 23

December 1949 create a right in favour of Nirmohi Akhara? Nirmohi Akhara

denies the incident completely. The right which Nirmohi Akhara has to assert
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cannot be founded on such basis and if there is no right, there can be no

corresponding wrong which can furnish the foundation of a continuing wrong.

There was no right inhering in Nirmohi Akhara which was disturbed by the order

of the Magistrate. The claim of Nirmohi Akhara was in the capacity of a shebait to

secure management and charge of the inner courtyard. Nirmohi Akhara has itself

pleaded that the cause of action for the suit arose on 5 January 1950.

Proceeding on the basis of this assertion, it is evident that the ouster which the

Akhara asserts from its role as a shebait had taken place and hence, there was

no question of the principle of continuing wrong being attracted.

269. The decision of the Madras High Court in Ellappa Naicken v K

Lakshmana Naicken144 is of no assistance to the Nirmohi Akhara. That was a

case where during the pendency of the proceedings under Section 145, the

Magistrate had passed an order under Section 146 for the appointment of a

receiver as the court was unable to satisfy itself as to which of the parties was in

possession. The respondents had filed a suit for a declaration of title and

possession which was dismissed in default and an application to set aside the

order under Order IX of Rule 9 of the CPC was also dismissed. An appeal from

the order was also dismissed. Thereafter the petitioner who was the defendant

applied for possession before the Magistrate after the dismissal of the suit on the

ground that the District Munsif had determined his rights. The Magistrate passed

an order holding that there was no declaration by a civil court as to who was

entitled to the suit premises and therefore the land would continue in the

possession of the receiver. It is in that context, that the learned Judge held that

144 AIR 1949 Madras 71

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either party to a decision under Section 146 has to file a suit for declaration of

title within the period of limitation or to bring a suit for the recovery of the profits of

the land. In such a suit, the question as to who is entitled to the profits will be

decided with the result that the question of title would also to be adjudicated. This

would operate as res judicata for the purpose of Section 146. These observations

were made by the learned Single Judge of the Madras High Court in support of

the ruling that it was not as if parties were without remedy, resulting in the

property remaining custodia legis for all time. Either party was entitled to bring a

suit for recovery of profits within limitation where the question of title would be

adjudicated. This decision is of no assistance to the Nirmohi Akhara. Certain

decisions have been relied upon by Nirmohi Akhara but these are in regard to the

commencement of limitation for the enforcement of a decree by execution. In

Chandi Prasad v Jagdish Prasad145, a two judge Bench of this Court held that

an appeal under the statute is a continuation of the suit for all intents and

purposes. Hence, when a higher forum entertains an appeal and passes an order

on merit, the doctrine of merger applies and there is a merger of the decree of

the trial court with the order of the appellate court. Hence, once a decree is

sought to be enforced for the purpose of execution, irrespective of being original

or appellate, the date of the decree or any subsequent order directing payment of

money or delivery of property at a certain date would be considered to be the

commencement of limitation. The same principle has been emphasized by a

three judge Bench in Union of India v West Coast Paper Mills Ltd.146147 and in

145 (2004) 8 SCC 724

146 (2004) 2 SCC 747
147 SCCOnLine SC 2196

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Shanti v T D Vishwanathan175. The essential issue is whether their suit was

within limitation and for the reasons which have been indicated, the answer to

that must be in the negative.

M.5 Oral testimony of the Nirmohi witnesses

270. Having held that Suit 3 instituted by Nirmohi Akhara is barred by limitation,

it does not strictly speaking become necessary for this Court to deal with the

evidence, oral and documentary. Mr Parasaran urged, that unlike the Trial Court,

this Court is not required to answer all the questions which arise in the first

appeal and if limitation alone concludes the issue it is unnecessary to deal with

all the issues in contest. The Trial Court, it was urged, has to deal with all issues

since its decision is subject to appeal. Having carefully evaluated this

submission, it is appropriate to scrutinize the evidence adduced by Nirmohi

Akhara and to render a full adjudication, having regard to the nature of the

controversy. The evidence recorded in all the suits has been relied upon during

the hearing of the appeals. Hence it becomes necessary to advert to the oral

evidence. Nirmohi Akhara has relied on the oral evidence of the following

witnesses during the course of the hearing:

271. Mahant Bhaskar Das (DW 3/1): The date of the Examination-in-Chief of

the witness is 29 August 2003. He was 75 years of age on the date of the

deposition and claimed to be a disciple of Baba Baldeo Das. He was the

Sarpanch of Shri Manch Ramanandiya Nirmohi Akhara and prior to it claimed to

be a Panch and pujari of the Ram Janmabhumi temple. The witness stated that:

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(i) Nirmohi Akhara is the owner of the idols, the disputed temple, Ram

Janmabhumi and other temples in the vicinity for several hundred years;

(ii) The consecration of Lord Ram seated in Ram Janmabhumi temple and

Ramchabutra was performed by a Mahant of Nirmohi Akhara;

(iii) This information was passed down to disciples from their old preceptors

from generation to generation;

(iv) That he was performing worship and aarti in the Ramchabutra temple from

1946-1949;

(v) Both the inner and outer courtyards have always been in the possession of

Nirmohi Akhara, there was a sanctum sanctorum in the inner part of which

the attachment was made;

(vi) The entire outer part was in possession of Nirmohi Akhara since time

immemorial;

(vii) No incident took place during the night of 22/23 December 1949, when he

was asleep below the northern dome of the disputed structure;

(viii) Aarti and worship of Lord Ram was being conducted in the sanctum

sanctorum even prior to 29 December 1949 and the inner temple was

attached on 19 December 1949;

(ix) After the riot of 1934, no Muslim had visited the disputed site to offer

namaz;

(x) No idol was taken from Ramchabutra temple on 22/23 December 1949

and the possession of the disputed temple had all along been with Nirmohi

Akhara;

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(xi) The servicing rights in respect of the main temple had been with Nirmohi

Akhara until 29 December 1949. Nirmohi Akhara had been performing

worship of Lord Ram and other idols in the outer premises till the second

attachment in February 1982; and

(xii) Lord Ram was seated in the inner part even prior to 1934, which was in

continuous possession of Nirmohi Akhara since then.

Dr Dhavan, learned Senior Counsel appearing on behalf of the Sunni Central

Waqf Board, has pointed out the following contradictions in the evidence of the

witness:

(i) While the witness stated that there was no incident on 22/23 December

1949, and that he was sleeping below the northern dome of the disputed

structure, the High Court has recorded the statement of Counsel for

Nirmohi Akhara to the effect that the idols were shifted from Ramchabutra

and kept under the central dome of the disputed building; and

(ii) The witness initially stated that there were two idols of Ram Lalla in the

disputed building; one on the throne and one on the stairs but he

subsequently clarified that by two idols he meant one of Ram Lalla and

another of Lakshman. Moreover, the witness claims that he had himself

performed Aarti of Lord Ram inside the disputed site prior to its attachment

on 29 December 1949 in spite of which he was not able to make any

statement in regard to the number of idols inside the disputed structure.

Moreover, while on the one hand, the witness stated that the parikrama

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was at the back of the disputed structure later on he stated that parikrama

was being performed around Ramchabutra.

272. The testimony of the witness on certain other aspects also merits scrutiny.

The witness stated that Babri Masjid was built in 1528 by demolishing the Ram

Janmabhumi temple. Then he stated that:

―Since the buildings built by Vikramaditya were 2500 years
old, they collapsed on their own and the Janmbhumi temple
was demolished in the year 1528. The building which was
demolished in the year 1528, was originally built by
Vikramaditya.‖

The witness stated that the building of a Ram Janmabhumi temple by

Vikramaditya and the construction of the disputed structure in 1528 upon the

demolition of the temple was what he heard from his ancestors and was not read

by him anywhere. According to the witness, worship in the mosque had been

continuing by the Hindus before 1934. According to him, the idols had been

installed prior to 1934 but he was unaware by whom they were installed. The

witness then stated:

―I had heard it from my ancestors that the idols existed over

there from before the year 1934. I will also not be able to tell
how many years after the construction of the three domed
disputed structure i.e. after the year 1528, were the idols
installed in the disputed structure.‖

According to the witness, in 1946, the gates of the grill-brick wall were opened for

devotees and the temple used to remain open. He stated that namaz was not

offered in the disputed structure till December 1949. As regards the incident on

22/23 December 1949, the witness has the following explanation:

―No incident occurred in the disputed structure in the night of

22/23 December, 1949. If somebody claims that some
incidents occurred in the disputed structure in the night of

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22/23 December, 1949, then he is stating wrongly. In the night

of 22/23 December, 1949 I was present in the disputed
premises. I go to bed at 11.30 PM and get up at 4.30 AM. I
must have slept so in that night i.e. in the night of 22/23
December, 1949. At that time i.e. in that night, I had slept at
the place beneath the dome.‖

The ignorance which the witness feigns of the incident is evident. The deposition

of the witness assumes importance because he was the Panch of Nirmohi

Akhara since 1950 and was at the material time the Sarpanch. His evidence has

several contradictions. He stated:

―This throne existed in the disputed structure from before

the year 1950. This throne was present in the disputed
structure, from ten years before the year 1950. This throne
was in the disputed structure in the year 1950, but it had not
been attached."

On the other hand, the witness stated:

―Before 1986, the throne, visible in these photographs, did

not exist at the disputed site. This throne may have been
placed in the disputed building after its lock was opened in
1986.‖

The witness then admitted that he had referred to two idols of Lord Ram when

there was only one idol of Lord Ram and one of Lakshman. As regards the idols

at Ramchabutra, the witness stated that they were installed during Akbar‘s reign.

While on the one hand, the witness stated that namaz had never been offered in

the mosque since the days of Babur, on the other hand, when he deposed about

the idol of Ram Lalla in the disputed structure, he stated that it was prior to 1934

but the exact date and period was not known to him. According to the witness,

the idol of Ram Lalla seated on the throne was a chal – vigrah or moveable idol.

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Much of the evidence of the witness is hearsay in nature. His statements are

based on what has been communicated to him by others. The explanation of the

witness that he was asleep in the disputed premises on 22/23 December 1949

and that no incident had taken place is a figment of his imagination. The

statement that the idols of Ram Lalla have been placed in the disputed structure

much prior to 1934 is unworthy of credence.

273. Raja Ram Pandey (DW 3/2): The date of the Examination-in-Chief of the

witness is 22 September 2003. The witness stated that he was 87 years old at

the time of deposition and that he had come to Ayodhya in 1930 since when he

claimed to have been visited the Ram Janmabhumi temple. The witness stated

that:

(i) He had seen the Nirmohi Akhara Aarti prior to the attachment of the inner

courtyard;

(ii) The duty of opening and closing the gates of the outer courtyard was

performed by Nirmohi Akhara;

(iii) No Muslims were allowed to enter from the outer gate between 1930-1949

and he was able to view the inner part of the sanctum sanctorum where

some idols had been engraved; and

(iv) Ever since his arrival until the date of attachment, the premises have never

been used as a mosque.

Dr Dhavan has during the course of his submissions emphasized the following

aspects of the cross-examination:

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(i) The witness has accepted that earlier the Chabutra was known as

Janmabhumi temple;

(ii) The witness was unaware as to when the disputed structure with three

domes was built and who had got it built; he had no knowledge as to when

and who had installed the idols inside the disputed structure; and

(iii) The witness was unaware as to when and by whom Nirmohi Akhara was

made the owner of Ram Janmabhumi temple.

The witness stated during the course of his examination that he was hearing of

the Babri mosque since 1949 but he was unaware where in Ayodhya it is or was

situated. He stated that he came to know later from the cross-examination that

the building which he called the Ram Janmabhumi temple is called the Babri

mosque by Muslims. Though, he stated he had held meetings with Muslims in

1992-93, he stated he was not informed by any of them that the mosque has

been demolished on 6 December 1992. On his own ability to recall events, the

witness stated:

―I have grown 87 years old and my discretion does not work

in a proper manner. For this reason, I fail to remember which
particular thing I stated at a particular time. Of the aforesaid
statements, the above mentioned statement given by me
today is correct; I have wrongly given the statement dated
30.09.2003.‖

The witness deposed that he had no knowledge of who had installed the idols in

the three domed disputed structure but claimed to have been seeing them ever

since he was visiting it. While on the one hand, the witness admitted to the

weakness of his memory, he purported to depose to what had taken place in

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1930, 73 years earlier when he visited the disputed structure for darshan.

According to him, his father had stated that the pillars contained images of Lord

Hanuman.

274. Satya Narain Tripathi (DW 3/3): The Examination-in-Chief of the witness

was on 30 October 2003 when he was 72 years old. The witness stated that he

had first visited the Ram Janmabhumi temple in 1941 when he was ten years old

and had been continuously visiting since then. The witness stated that no namaz

was offered at the disputed site nor had any Muslims offered prayer. Though, the

witness stated that he has been continuously visiting the disputed structure,

when asked about the physical features, he stated that he never saw any part of

the disputed structure with much attention.

The witness expressed ignorance about whether certain individuals had entered

the mosque and placed idols on the night of 23 December 1949. The High Court

has noted that most of the statements of this witness are on assumption and

hearsay. While on the one hand, he referred to the idols which were placed on

the sinhasan in the disputed structure which remained there from 1941-1992, he

later retracted the statement when shown the photographs and stated that it was

not clear to him when he used to visit and in what manner the idols were kept.

275. Mahant Shiv Saran Das (DW 3/4): The witness was examined on 14

November 2003. He was 83 years old. He stated that he had been going for

darshan to Shri Ram Janmabhumi since 1933 and had darshan of Lord Ram

inside the sanctum sanctorum until attachment in 1949.

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Dr Dhavan, learned Senior Counsel appearing for the Sunni Central Waqf Board,

has emphasized the following aspects of the testimony of this witness:

(i) The witness submitted that he had read his affidavit of evidence only

cursorily and had not read it completely;

(ii) Though the witness stated that when he visited the disputed site in 1936,

there were no walls or iron-bars, it is relevant to note that grill-brick wall

was placed in 1856-57 to separate the inner and the outer courtyards; and

(iii) Though, in the course of his Examination-in-Chief, the witness stated that

he had taken darshan of the inner sanctum sanctorum until its attachment

in 1949, during his cross-examination he stated that he had not visited the

disputed building before 1986. On the above basis, it is urged that as a

matter of fact, the witness has not visited the disputed site at the material

time.

On his residence in Ayodhya, the witness stated:

―I did not reside at Ayodhya from 1938 to 1950 but

whenever I came to Ayodhya I did not go towards the
disputed site and if I at all went there I returned from outside
after saluting the place with folded hands.‖

The witness stated that he was a priest at the disputed structure which he must

have visited several hundred times. However, he did not remember the year in

which he was a priest. During the course of his cross-examination, the witness

stated that he was a priest at the three domed structure for ―2-4 years‖ but later

admitted that his statement was wrong:

―Question: As per the aforesaid statement of your own, you

have been at Ayodhya continuously for only 5-6 months
between 1931 and 1957. Is it true?

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Answer: Yes, Sir. It is true.

Question: Then I have to say that your statement dated 5th
February, 2004 – mentioned on page 74 and reading as 'You
served as a priest at the three domed disputed building for 24
years' – goes wrong. What have you to say in this respect?
Answer: Going through the aforesaid the witness stated –
this statement of mine has gone wrong.‖

Later, he admitted that his statement in the Examination-in-Chief that he was

going for darshan to the Ram Janmabhumi since 1933 contained a wrong

reference to the year. Moreover, the witness accepted that he did not remember

whether or not he had visited the disputed building before February 1986. The

witness also stated that he had wrongly made a reference to his residing in

Ayodhya continuously from 1930-42.

276. Raghunath Prasad Pandey (DW 3/5): The Examination-in-Chief of the

witness is dated 18 November 2003. The witness was 73 years old when he

deposed. According to him, the Ram Janmabhumi temple is about 16 or 17

kilometres from his village and he has visited it since the age of 7.

277. The following aspects of the cross-examination have been emphasized by

Dr Dhavan:

(i) The witness had no knowledge of whether the pictures were of the west

side wall or the lower portion of the middle dome of the disputed building

because he had gone for darshan and had not paid careful attention to the

walls;

(ii) Though, he had seen the grill-brick wall, he did not remember if one had to

pass through the barricades to enter the disputed structure; and

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(iii) Though the witness claimed to have visited Ayodhya with his mother from

1937-1948, and that the idols of Lord Ram Lalla were inside the building

under the central dome, he subsequently contradicted himself when

confronted with various photographs.

The High Court has noted that most of his statements travelled into antiquity and

were inadmissible since he had no personal knowledge of the facts. When

questioned about the source of his knowledge, he stated that he had heard

stories from his teachers. Initially, the witness stated that the three domed

structure was constructed by Vikramaditya. He then stated that the building

constructed by Vikramaditya was demolished and the disputed building was

constructed. Though, he attributed this information to the Ayodhya Mahatmya,

counsel for Nirmohi Akhara conceded before the High Court that the document

does not mention that the building was constructed by Vikramaditya and was

demolished after which the disputed structure was constructed. Though, the

witness had served in the Indian Railways from 1948-1988, he claimed to have

heard the name of Babri mosque for the first time on 18 November 2003.

278. Sri Sita Ram Yadav (DW 3/6): The date of the Examination-in-Chief of the

witness is 6 January 2004. The witness stated that he was born in 1943 and that

he attained the age of understanding in 1951 when he was 8 years of age. The

statements of this witness were therefore not relevant to the controversy since

his factual knowledge pertains to the period after 1951. This witness was born in

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1943 and had no personal knowledge of the facts up to December 1949. The

evidence of the witness was hearsay in nature.

279. Mahant Ramji Das (DW 3/7): The following aspects of the testimony have

been emphasized by Dr Dhavan:

(i) The witness accepted that the disputed building was built by Emperor

Babur but he stated that it was constructed as Sita Pak but not as a

mosque, which is contrary to the stand of Nirmohi Akhara in its written

statement;

(ii) According to the witness, the disputed temple was constructed after the

demolition of Janmasthan Mandir by Emperor Babur by way of Goodar

Baba (which is not the pleaded case of any of the Hindu Parties); and
(iii) Babur got ‗Sita Pak‘ written on the disputed building because he was

unable to construct the mosque because Hanumanji would demolish the

structure whenever an attempt was made to build a mosque.

As to his own personal knowledge, the witness stated:

―I cannot definitely tell as to on how many occasions had I
gone to Ayodhya between the years 1934 to 1948. I do not
remember as to what was my age, when I visited Ayodhya
between the years 1934 to 1948. When I had gone along with
my father. I do not remember as to when did I first go to
Ayodhya after the year 1934, but when I first went to Ayodhya
after the year 1934, I stayed for 3-4 days.‖

Contrary to the stand of the Nirmohi Akhara, he stated that the disputed structure

was built by Babur, though in the shape of Sita Pak:

―The disputed structure, which was demolished on 6th

December, 1992, was built by Babar in the shape of 'Sita
Pak', (and) not in shape of mosque... In the period of Akbar,
Muslims had the permission to offer Jumma namaz in the

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disputed structure and for the remaining period, Hindus were

permitted to carry out prayer-worship. It is not found in
literature or history as to whether in the period between
Babar to Akbar, namaz was offered by Muslims in the
disputed structure or not, or whether the prayer-worship of
Lord Rama was carried out or not. To the best of my
knowledge and as told to me, namaz was never offered in
the disputed structure after the riot of the year 1934 and
instead prayer-worship was regularly carried out over there in
the later days. As per my knowledge, which is based on
hearsay, the Jumma namaz was offered at the disputed
structure from the times of Akbar till the year 1934. Namaz
was not offered on other days.‖

Eventually, the witness stated that he had not read his affidavit by way of

Examination-in-Chief at the time of signing it and had read it in the court room.

280. Pt Shyam Sundar Mishra (DW 3/8): He was born in 1914 and stated that

Ram Janmabhumi is situated at a distance of less than 400 yards from his house.
He was 90 years old at the time of deposing.

281. The following aspects of the testimony of the witness have been

emphasised by Dr Dhavan:

(i) The statement of the witness that the central dome is swayambhu is

against the pleaded case of Nirmohi Akhara;

(ii) According to the witness, in 1992 the dome of the janmasthan temple

came down due to its antiquity and due to lack of proper maintenance; and

(iii) While deposing, the witness seems to distinguish between Ramchabutra

temple and the ―three dome temple‖ and stated that it was the

Ramchabutra temple which was in the ownership of Nirmohi Akhara and

remained silent about the management and ownership of the ―three

domed temple‖.

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The witness stated that he had no knowledge about the observance or

nonobservance of worship at the disputed site before he attained the age of 14

years.

282. Sri Ram Ashrey Yadav (DW 3/9): The Examination-in-Chief of the witness

was recorded on 22 March 2004 when he was 72 years of age. He claims to

reside in close proximity to the Ram Janmabhumi temple.

283. Dr Dhavan has submitted that this witness is completely unaware of what

is stated in his Examination-in-Chief, which needs to be completely disregarded

for the following reasons:

(i) In the course of his cross-examination, the witness admitted that while he

had no knowledge of what was written in his affidavit, he cannot recollect

what exactly was written though it was read out to him;

(ii) The answers which he has furnished maybe right or wrong and that his

memory had been affected;

(iii) He was unaware whether the main affidavit was typed in Faizabad or

Lucknow;

(iv) He had visited the sanctum sanctorum for darshan even before 22/23

December 1949 and the statement that an idol was placed on those dates

was untrue; and

(v) The witness was unaware whether the dates 22/23 December pertained to

the year 1949 or not.

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Though, the affidavit was prepared merely ten months earlier, the witness was

unable to recollect anything from the document. He was unaware of the history of

Nirmohi Akhara and had no knowledge whether the disputed shrine was

attached. This witness stated that he was unaware of the contents of his affidavit

by way of Examination-in-Chief:

―Today, I have filed an affidavit in this Court. I was not able

to read on my own as to what was written in the affidavit filed
by me. This affidavit was read out to me by the 'Munshi'
(advocate clerk), but I do not remember his name. I had only
put my signature on the affidavit after hearing the same, but I
do not know about its contents. This affidavit ran into three or
four pages.‖

Later, he stated that his mind was not functioning properly for eight to ten months

and his memory had become weak. He stated:

―I do not recollect whether the facts mentioned in this

paragraph, had been got incorporated by me or not. … In
second and third line of this paragraph, I have mentioned that
'the placement of idols in the 'Garbh-grih' portion on 22-23
December, is totally wrong'. I do not remember whether this
fact is related to the incident of 1949 or not. In this very
paragraph, I have also mentioned that 'few local Muslims. …
got the forged action taken'. I do not recollect as to in which
behalf, was this forged action. Stated on his own that I cannot
tell whether the forged action mentioned by me was related to
the incident of year 1934 or not.‖

284. Sri Pateshwari Dutt Pandey (DW 3/10): The Examination-in-Chief of the

witness is dated 23 March 2004. The witness who was 74 years of age stated

that he was the local commissioner who performed a site survey in relation to

another case (Nirmohi Akhara v Ram Lakhan Sharan Das – Suit 9 of 1973).

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Dr Dhavan has adverted to the following points in regard to the testimony to the

witness:

(i) Though, his report marks the existence of a Mandir at the disputed site, he

accepted that the word ‗Mandir‘ had been inserted by him at the behest of

certain other persons. He did not know whether the place was Babri Masjid

or otherwise and stated that he had written what was informed to him by

others; and

(ii) Consequently, the report of the witness cannot be relied upon to establish

that the disputed structure was a temple as he marked it as a temple only

on the suggestion of others.

These admissions of the witness cast serious doubt on his credibility.

285. Sri Bhanu Pratap Singh (DW 3/11): The Examination-in-Chief of this

witness was recorded on 28 April 2004 when he was 70 years of age. He claimed

to be visiting the Ram Janmabhumi temple since the age of 10. The witness

stated that his memory is weak. He was unable to state whether any other temple

apart from the Ram Janmabhumi temple is related to Nirmohi Akhara. When

confronted with his Examination-in-Chief, he stated:

―The portion ‗temples all around‘ of my above statement, is

wrong because temples were only on two sides… In this
behalf, I cannot give any reason for making wrong statement.
I forget few facts due to which such statements are made. By
forgetting, I mean that I do not remember those facts at that
time.‖

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286. Sri Ram Akshaibar Pandey (DW 3/12): The Examination-in-Chief was

recorded on 25 May 2004. The witness who was 70 years of age stated that he

was visiting the Ram Janmabhumi temple since the age of 12.

The following aspects of the testimony of the witness are significant:

(i) The witness admitted that his information about the disputed structure had

been gathered from his grandfather;

(ii) Though, in his Examination-in-Chief, he stated that he used to do the

parikrama, in the course of his cross-examination, he stated that he had

never seen the three domes from behind the structure;

(iii) The witness stated that he had not performed the parikrama of the Ram

Janmabhumi but of Ramchabutra;

(iv) According to the witness, he was informed by the villagers that the Ram

Janmabhumi in which Ram Lalla was present had collapsed as it was old;

and

(v) The witness stated that he neither read nor heard about who had

constructed the disputed structure with three domes. The witness

eventually accepted the weakness of his own memory rendering him

unreliable.

287. Mahant Ram Subhag Shashtri (DW 3/13): The Examination-in-Chief was

recorded on 25 May 2004. The witness was 86 years of age and stated that he

had come to Ayodhya in 1933 and his guru was connected to Nirmohi Akhara.

The following aspects of the testimony of witness are relevant:

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(i) The witness stated that there was a disturbance on the night of 22/23

December 1949 in the disputed structure and though he was not aware

about the arrangements which were made on that night, it transpired that

new idols were installed;

(ii) As regards the construction of the mosque, the witness stated:

―Babar had built the mosque by demolishing the structure of

temple, but he was unable to make it a mosque completely.
14 pillars were fixed in this structure, which had idols
engraved over them, and as such it became a place of idol.‖

(iii) The witness stated that possibly facts pertaining to the period after 193334

had vanished from his memory. The statement of the witness that the idols

were installed in the disputed structure on the night of 22/23 December

1949 is contrary to the case of Nirmohi Akhara. According to

Nirmohi Akhara, there never existed any mosque at the disputed site and

all along there was a temple which was in its management, and that no

incident had taken place on 22/23 December 1949.

288. Jagad Guru Ramanandacharya Swami Haryacharya (DW 3/14): The

Examination-in-Chief was recorded on 23 July 2004 when the witness was 69

years old. He was the head of Ramanand Sampradaya since 1985-86. He came

to Ayodhya in 1949 at the age of 10. According to him, he had seen the idol of

Ram Lalla inside the disputed structure under the central dome as well as outside

at Ramchabutra. The witness deposed when he first had darshan from a distance

of 15 feet, it was not from under the dome but from the courtyard. The witness

had no information whether namaz was offered in the disputed structure before

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he came to Ayodhya. The witness did not rule out the possibility that the idols

were placed inside the disputed structure in 1949, when he stated:

―It is possible that in the dispute that occurred in 1949 and in

the incident in which idol had been placed in the disputed
building, the local Hindus of Ayodhya had no role; rather,
outsider ascetic saints were responsible for the same.‖

289. Narendra Bahadur Singh (DW 3/15): The Examination-in-Chief was

recorded on 17 August 2004. The witness was 72 years of age. According to him,

when he was 11 years old, he went to Ram Janmabhumi with his parents and

saw the idol of Ram Lalla seated under the central dome. He claimed that since

the age of 15, he was going alone to the temple until demolition.

Dr Dhavan has adverted to the following points in regard to the testimony of the

witness:

(i) The witness needs to be completely disregarded for having furnished

varied time periods of when he commenced visiting the disputed site.

Though, he stated in his Examination-in-Chief that he first visited at the

age of 11, in his cross-examination, he stated that he had seen the

Nirmohis managing the disputed structure since the age of 5-6 years and

8-9 years;

(ii) Regarding his statement that he had never seen any namaz at the

disputed site, he stated that he was not there at the site and hence could

not see whether namaz was being conducted; and

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(iii) The witness denied the existence of the Janmasthan Mandir on the north

side which has been accepted by Nirmohi Akhara in its replication.

290. Shiv Bhikh Singh (DW 3/16): The witness was 79 years of age on the

date on which his affidavit, by way of Examination-in-Chief, dated 24 August

2004 was sworn. He claimed that he had been visiting Ram Janmabhumi temple

since the age of 12 and had seen the idol of Lord Ram under the central dome.

The witness stated that the idol of Ram Lalla was situated in the Ram

Janmabhumi temple and there were three caves. He denied that the idols were

placed in the disputed structure on 23 December 1949. According to him, the

idols existed at the disputed structure even before his forefathers. The witness

spoke about darshan in the three domed structure where the idol existed but

stated that circumambulation was performed inside the grill-brick wall. According

to him there was no place called Sita Rasoi in the disputed premises. The

witness also stated that when he had first gone to the three domed structure, he

had not been exactly under the central dome and that he had taken darshan from

the gate in the front of the lower side of the dome.

291. Sri Mata Badal Tewari (DW 3/17): The witness was 84 years of age on

the date of his Examination-in-Chief dated 31 August 2004. He claimed that he

had visited the Ram Janmabhumi temple for the first time in 1935 at the age of

15 and has visited Ayodhya since then. The witness had no knowledge about the

Babri Masjid at Ayodhya or where it is situated. He however stated that he heard

of the mosque. The lack of awareness of this witness about the mosque is

contradicted by his account of the riots of 1934:

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―I have mentioned about the riot of Ayodhya. This riot

occurred in the year 1934. Some part of the disputed
structure had been damaged at that time. Those domes were
damaged by many people. The damagers were followers of
Hindu religion.‖

If, according to the witness, the persons who damaged the domes in 1934 were

Hindus by religion, it is impossible to accept his lack of awareness about the

existence of the mosque.

292. Sri Acharya Mahant Bansidhar Das (DW 3/18): The witness who was

born in 1905, stated that he had come to Ayodhya in 1930. He was 99 years of

age on the date of his Examination-in-Chief on 15 September 2004. He stated

that he was continuously visiting the disputed structure and worshipping idols in

the inner courtyard. The following aspects of the testimony of this witness need to

be noted:

(i) The witness deposed that Ramchabutra is also called Bedi and the word

can be used for a small or large Chabutra;

(ii) The witness stated that there is no harm in telling a lie if there is a religious

place and if someone is acquiring it through wrong means or forcibly

occupying it;

(iii) The witness admitted that his memory was not good due to age;

(iv) The witness had given testimony in about two hundred suits. The witness

had varied theories about the construction of the temple contrary to the

pleaded case of the litigating Hindu parties:

(a) According to him, the repairs of the Ram Janmabhumi was carried

by Nirmohi Akhara during the last 700 years;

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(b) The temple of Kasauti black stones was constructed by Nirmohi

Akhara;

(c) The temple said to be made during the time of Vikramaditya was

constructed by the King of Kannuz and not by the King of Ayodhya;

(d) Mir Baki destroyed the Ram temple but did not construct the Masjid,

the temple was reconstructed by Govind Das who was the Mahant

of Nirmohi Akhara during the regime of Babur;

(e) Govind Das Ji constructed the building with three domes;

(f) Some part of the temple was constructed during the regime of Babur

which was destroyed during the regime of Humayun but was

reconstructed by Govind Das Ji; and

(g) Anantananda, disciple of Ramanand, reconstructed the temple at

the disputed site.

293. Sri Ram Milan Singh (DW 3/19): The witness was 75 years of age on 17

August 2004 when his Examination-in-Chief was recorded. He sought to prove

the existence of idols under the central dome in the inner courtyard and on the

Ramchabutra, stating that he had been visiting since 1940 till 1951 and

occasionally after 1952. When questioned about his affidavit, he stated:

―The person having prepared this affidavit, can only tell

about this. I had not completely read the affidavit of
examination-inchief before signing it… I had put my signature
on the affidavit at the High Court, Lucknow. I cannot tell
whether this affidavit had been typed out at Lucknow or not.
At the time when the draft of this affidavit of mine had been
prepared, I was at the place of my counsel in Ayodhya. He
had told that ‗I am preparing the draft of your affidavit‘. I had
not seen the contents of the draft of the affidavit, after it was
prepared.‖

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The above admission renders his evidence untrustworthy and not deserving of

credence.

294. Mahant Raja Ramchanbdr-Acharya (DW 3/20): The witness was 76

years old on the date of the Examination-in-Chief on 27 October 2004. He was a

pupil of Mahant Raghunath Das, the second plaintiff in Suit 3. The witness stated

that in 1943, when he first came to Ayodhya, the Babri Masjid did not exist and

that the disputed building is not a mosque:

―In 1943, when I first came to Ayodhya, the Babri mosque

was not at all existing there. There was no mosque on the
disputed site in 1943, because there used to be worship of
idols over there. I have heard the name of the Babri mosque.
The disputed building is the Babri mosque. (Again stated) It
is not the Babri mosque; it is a temple. The disputed building
has three domes. It is not a mosque. It is the birthplace of
Lord Rama. In 1943, when I first visited Ayodhya I did not see
the Babri mosque at all. I never saw namaz being offered in
the disputed building. I have seen Pooja being performed
there. (Stated on his own) No question arises of offering
namaz at a place where Pooja is performed. In 1943, when I
first visited Ayodhya, I saw a temple, not a mosque, on the
disputed site. (Stated on his own) There used to be
PoojaSewa (offering worship and rendering service) over
there.
Three domes were built in the disputed building.‖

According to the witness, namaz was not offered at the disputed building from

1943 to 1950 and puja was being performed; and the sanctum sanctorum was

situated beneath the three domed structure of the disputed building.

295. The above account of the oral evidence of the witnesses who deposed in

support of the Nirmohi Akhara indicates that their statements are replete with

hearsay. Witnesses who claimed to have visited the disputed site on numerous

occasions were unable to record its physical features. Though, the witnesses

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have purported to state that no incident had taken place on 22/23 December

1949 and one of them feigned ignorance on the ground that he was sleeping

inside the disputed structure at the time, it is impossible to accept this as a

credible or trustworthy account. The statements of the witnesses are replete with

inconsistencies and contradictions. The witnesses were unclear about the nature

of the parikrama route and the number of idols. While furnishing a description of

the idols inside the disputed structure, many witnesses acknowledged that they

had not entered the disputed structure. Many of the witnesses had not read their

affidavits in lieu of the Examination-in-Chief and had merely appended their

signatures without understanding the contents. Many of the witnesses have not

been able to confirm their assertions in the Examination-in-Chief and have in fact

contradicted their own statements. Many of the witnesses offered accounts with

respect to the disputed structure which are at variance with the pleaded case of

Nirmohi Akhara. Some of the witnesses in fact supported the case in Suit 4 that

Babri Masjid existed where prayers had been conducted. Consequently, the

witness accounts cannot be regarded as credible proof in support of the case of

Nirmohi Akhara.

M.6 Nirmohi Akhara‘s claim to possession of the inner courtyard

296. The claim of Nirmohi Akhara in Suit 3 is in respect of the inner courtyard,

including the three domed structure of the mosque. Nirmohi Akhara denies the

incident of 22/23 December 1949 during the course of which the idols were

surreptitiously installed into the disputed structure. According to Nirmohi Akhara,

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the structure is a temple and not a mosque. The oral evidence which has been

adduced to support this submission has been analysed earlier. The oral evidence

does not indicate any cogent, credible or trustworthy account of Nirmohi Akhara

being in possession of the inner courtyard or structure. With this state of the

record in regard to the oral accounts of the witnesses produced by Nirmohi

Akhara, it becomes necessary to scrutinise whether the documentary evidence

supports the case of Nirmohi Akhara being in possession of the inner courtyard

and structure.

297. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiffs in

Suit 3, emphasized the findings contained in the judgments of Justice Sudhir

Agarwal and Justice D V Sharma that Nirmohi Akhara had a presence at

Ayodhya from 1734 after Mahant Govind Das left Jaipur to come to Ayodhya.

Justice Sudhir Agarwal observed, while deciding issue 17 in Suit 3 that:

―799…Nirmohi Akhara, plaintiff no. 1 is a Panchayati Math
of Ramanandi Sect of Bairagies and as such is a religious
denomination following its religious faith and pursuit
according to its own custom. We however further hold that its
continuance in Ayodhya find sometimes (sic) after 1734 AD
and not earlier thereto.‖

Justice D V Sharma placed reliance on the evidence of Mahant Bhaskar Das

(DW 3/1) and Raja Ramachandracharya (DW 3/20) to hold that:

―Nirmohi Akhara is a Panchayati of Ramanandi sect of

Bairagies and as such is religious denomination. The custom
has already been registered in the year 1949.‖

298. These findings do not establish Nirmohis being in possession of the inner

courtyard. While scrutinizing the documentary evidence which has been relied

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upon by them, a distinction must be drawn between a mere presence of Nirmohi

Akhara at Ayodhya or around the disputed site and actual possession of the

disputed structure. Mr S K Jain in that context adverted to the account of

Tieffenthaler of 1770 which refers to the presence of the Bedi or cradle

symbolizing the place of birth of Lord Ram. The reference to the cradle in

Tieffenthaler‘s account cannot be regarded as indicative of the Nirmohi Akhara

being in possession of the disputed structure or inner courtyard of the mosque.

Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18), who was a

witness for Nirmohi Akhara stated that Ramchabutra is also called Bedi. The

statement of this witness to the effect that the Bedi / cradle was at Ramchabutra

cannot be taken out of context and has to be read in the light of the entirety of the

evidence, including Tieffenthaler‘s observations on what he had noticed. Among

the other documents, which have been relied upon are:

(i) ―East India Gazetteer of Hindustan‖ by Walter Hamilton;

(ii) Edward Thornton‘s ―The Gazetteer of the Territories under the

Government of East India Company‖;

(iii) The complaint of 25 September 1866 by Meer Rajab Ali Khateeb regarding

the ―Kothri‖ constructed by certain Bairagis inside the compound of the

mosque;

(iv) Carnegie‘s ―Historical Sketch of Faizabad‖;

(v) Permission granted to Mahant Khem Das on 13 April 1877 for the

construction of a new gate on the northern side;

(vi) The appeal filed on 13 December 1877 against the grant of permission for

the new gate;

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(vii) The report made by the Deputy Commissioner in view of the above
appeal;

(viii) The order of the Commissioner dated 13 December 1877 dismissing the

appeal;

(ix) Gazetteer of the Province of Oudh (1877-78);

(x) The plaint in the suit instituted by Syed Mohd Asghar against Mahant

Raghubar Das on 8 November 1882 seeking rent for the use of the

Chabutra;

(xi) The order of the Sub-Judge, Faizabad dated 18 June 1883 dismissing the

suit;

(xii) The application filed by Syed Mohd Asghar on 2 November 1883 for

permission to carry out repairs of the mosque;

(xiii) The order of the Deputy Commissioner dated 12 January 1884;

(xiv) The order of the Assistant Commissioner dated 22 January 1884; and
(xv) The complaint by Mahant Raghubar Das dated 27 June 1884 seeking spot

inspection in view of the work being carried out by Syed Mohd Asghar for

white washing the walls of the mosque.

299. These documents have been analysed in the judgment of Justice Sudhir

Agarwal who observed that the idol existed at Ramchabutra and Nirmohi Akhara

was likely looking after the worship of the idol, which was not seriously disputed

by the other Hindu parties. However, Justice Agarwal observed that there was no

basis to hold that Nirmohi Akhara continued to do so even after the idols were

shifted inside the structure on 22/23 December 1949. This finding was because

Nirmohi Akhara plainly denied that any incident had taken place on 22/23

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December 1949 and they had no cogent explanation to offer of the events which

took place on the intervening night. A careful scrutiny of the documents which

have been relied upon by Nirmohi Akhara does not lead to the inference that

Nirmohi Akhara had exclusive possession of the disputed structure. We must

bear in mind the submission of Mr S K Jain that the disputed structure of the

mosque was landlocked and that the outer courtyard which included

Ramchabutra, Sita Rasoi and the Bhandar had to be traversed in order to gain

entry to the mosque. There were two gates to the outer courtyard namely Singh

Dwar and Hanumat Dwar. But, would the landlocked character of the disputed

structure lead ipso facto of the conclusion that Nirmohi Akhara was in possession

of the inner structure? It is not possible to draw that inference on a

preponderance of probabilities.

300. In 1885, a suit was instituted by Mahant Raghubar Das seeking permission

for the construction of the temple on the Chabutra. The Sub-Judge at Faizabad in

his judgment dated 24 December 1985 observed that though the area occupied

by the Chabutra was in the possession and ownership of the plaintiff, permission

for carrying out construction should be refused on the ground that it was not in

public interest and would lay the seeds of conflict between the Hindus and

Muslim communities. In appeal, the District Judge Faizabad on 18/26 March

1886 deleted the observations on the ownership of the Chabutra made in favour

of Mahant Raghubar Das. Mr S K Jain, in his written submissions has fairly

accepted that the events arising out of the Suit of 1885 have been relied upon to

show the presence of Mahant Raghubar Das at the Ramchabutra in the outer

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courtyard. Besides this, the Nirmohis have been ambivalent about the Suit of

1885 indicating unawareness about it at one stage and then adopting an

inconsistent position at other times.

301. The next set of documents relied on by Nirmohi Akhara commence from

1900. These documents are set out below:

(i) Agreement permitting Jhingoo to provide drinking water to pilgrims148;

(ii) H R Nevill‘s ―The Gazetteer of the United Provinces of Agra and Oudh

1905‖ stating that the Nirmohi Akhara sect formerly held the Ram

Janmabhumi temple in Ramkot, the remains of which still belong to them;

(iii) Mutation entry in favour of the Mahant Raghunath Das149;

(iv) Agreement of Theka shop dated 13 October 1942178;

(150v) Agreement dated 29 October 1945 executed in respect of a shop by Mahant

Raghunath Das151;

(vi) The report by the Waqf Inspector stating that Muslims were not able to

perform namaz Isha at the mosque due to the fear of Hindus and Sikhs152;

(vii) The report of the Waqf Inspector dated 29 December 1949 recording the

presence of police personnel between 22/23 December 1949 153, and that

no namaz was being performed except on Friday when the mosque is

open for 3-4 hours and that several bairagis were trying to forcibly take

possession of the mosque;

148 Exhibit 8
149 Exhibit 49
150 Exhibit 9
151 Exhibit 10
152 Exhibit A-63 - Suit 1
153 Exhibit A- 64 - Suit 1

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(viii) The report of the receiver dated 5 January 1950 which refers to Nirmohi

Akhara while depicting the boundaries of the property taken into

possession by him.154 Post attachment on 5 January 1950, it has been

submitted that objections were filed by Mahant Baldeo Das in the

proceedings under Section 145155;

(ix) In 1961, permissions were sought for carrying out construction in the outer

courtyard; and

(x) The clarification of the City Magistrate dated 9 February 1961 stating that

there was no objection to the replacing of canvas or cover.

Adverting to the documents which have been relied upon by Nirmohi Akhara,

Justice Sudhir Agarwal held that the contents of documents to which the

defendants were not parties are not relevant on questions of title and possession.

The documentary evidence relied upon by Nirmohi Akhara does not shed light in

respect of the premises within the inner courtyard.

302. Dr Rajeev Dhavan has, in the course of the hearing of the appeal, filed a

detailed response to the exhibits which were relied upon by Nirmohi Akhara. The

course of events in the history of the communal conflict indicates a series of

conflagrations between Hindus and Muslims in 1856-57 and 1934. The mosque

was partially damaged in 1934 and subsequently, obstructions were placed in the

course of offering namaz in the mosque involving a denial of the right to pray for

the Muslims. This is followed by the events which took place on 22/23 December

1949 when idols were surreptitiously placed under the central dome. Soon
154 Exhibit A– 3 – Suit 4
155 Exhibit 6 -Suit 3

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thereafter, proceedings were initiated under Section 145 resulting in the

attachment of the property. In this background, it is difficult to accept the case of

Nirmohi Akhara that the disputed structure was a temple which was in its

exclusive possession and that no incident had taken place on 22/23 December

1949.

Documentary evidence in regard to the mosque (1934-1949)

303. In order to refute the claim of Nirmohi Akhara in regard to possession of the

disputed structure, Mr Zafaryab Jilani, learned Senior Counsel appearing for the

Sunni Central Waqf Board relied on documentary evidence to support the case

that the structure situated within the inner courtyard was a mosque and that it

was being used by Muslims to offer namaz from 1934 to 1949. This documentary

evidence has a bearing on the correctness of the claim of Nirmohi

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Akhara in regard to exclusive possession of the mosque and hence needs to be

scrutinised. The documentary evidence consists of the following:

(i) Certified copy of the order dated 4 June 1942156 and decree dated 6 July

1942 in Regular Suit 95 of 1941 (Mahant Ramcharan Das v Raghunath

Das) before the Additional Civil Judge, Faizabad.157 A compromise was

arrived at in the Suit. The terms of compromise contain a specific

reference to the ―Babri Masjid‖186:

―2. A pucca temple along with lands situated at

JanambhumiBabri Masjid in Mohalla Ramkot, City Ayodhya,
Pargana Haveli Awadh, Tehsil & Dist. Faizabad, whose
boundaries are described as under:
East : Parti & Kabristan (Graveyard)
West: Babri Masjid
North: Pucca Road
South: Kabristan (Graveyard).‖

The suit was between the Nirmohis inter se. The above document indicates that

the existence of the mosque cannot be denied;

(ii) After the riots which took place on 27 March 1934 on or about the

occasion of Bakri-Eid, a portion of the mosque was destroyed. In that

connection, there are documents relating to the repair of the premises:

(a) Permission granted for cleaning of Babri Masjid and its use for

religious services158;

156 Exhibit A-4 – Suit 4

157 Exhibits A-5 - Suit 4
186
Exhibit A-6 – Suit 4
158 -49- Suit 1
Exhibit A
Exhibit A

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(b) Application of Mohd Zaki and others dated 5 June 1934 for the

recovery of fines from the Bairagis for causing damage to the

mosque159;

(c) The order of the District Magistrate dated 6 October 1934 for the

payment of compensation for the damage caused to the mosque160;

(d) Application of Tahawar Khan, the contractor, dated 25 February

1935 for the payment of his bills for the repair of the mosque161;

(e) The order of the Deputy Commissioner, Faizabad dated 26

February 1935 for inspection of the work done by the SDM Sadar

prior to payment of bills for the repair of the mosque162;

(f) Estimate of repairs submitted by the contractor on 15 April 1935

including the repair of the domes163;

(g) An application of the contractor dated 16 April 1935 in regard to the

delay in the completion of work. The letter stated that the repair to

the dome was under preparation as were the marble tablets with the

inscriptions of Allah164;

(h) Inspection note dated 21 November 1935 of the Assistant Engineer,

Public Works Department, Faizabad regarding repair of Babri

Masjid, noting that the work was inspected and found to be

satisfactory165;
159 -6- Suit 1
160 Exhibit A-43- Suit 1
161 Exhibit –A- 51 – Suit 1
162 Exhibit A-45- Suit 1
163 Exhibit –A-44- Suit 1
164 Exhibit –A-50- Suit 1
165 -48- Suit 1
Exhibit A
Exhibit A

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(i) Report of the bill clerk dated 27 January 1936 on the bill of the

contractor regarding the repair of the mosque166;

(j) Order of Mr A D Dixon dated 29 January 1936 regarding payment

for the work of repair of Babri Masjid196; and

(167k) Application of the contractor dated 30 April 1936 complaining of the

deductions made from his bill for the repair of Babri Masjid.168

The above documents which have been duly exhibited indicate that following the

riots of 1934, a Muslim contractor was engaged for the repairs of the Babri

Masjid. There is a reference to the damage sustained by the mosque and to the

work of restoration that was carried out by the contractor.

304. Besides the documentary evidence relating to repair, another set of

documents relates to the services of the Imam at Babri Masjid:

(i) An agreement/undertaking was executed by Syed Mohd Zaki, trustee of

Babri Masjid on 25 July 1936 in favour of the Maulvi Abdul Ghaffar, Pesh

Imam of Babri Masjid regarding the payment of his outstanding salary until

1935198;

(ii) Application of Syed Mohd Zaki dated 19/20 July 1938 before the Waqf

Commissioner in response to a notice under Section 4 of the Muslim Waqf

Act 1936169;

166 -46 – Suit 1

167 Exhibit A-47- Suit 1
168 Exhibit A-52- Suit 1
198
Exhibit A-7- Suit 1
169 - 67- Suit 1
Exhibit A
Exhibit A

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(iii) Application of Abdul Ghaffar, Pesh Imam Babri Masjid dated 20 August

1938 before the Waqf Commissioner, Faizabad, seeking a direction to the

Mutawalli for the payment of the arrears of his salary due upto 31 July

1938170;

(iv) Reply of the brother of Syed Mohd Zaki (the former Mutawalli) dated 20

November 1943 to the notice of the Sunni Waqf Board dated 27 October

1943.171 The letter contains a clear reference to the arrangement made for

maintaining the daily needs for the mosque as well as the requirements for

Friday prayers:

―That mat, floor cloth and janamaaz – prayer rug etc. are
kept sufficient for daily needs only. Other floor cloth and
prayer rugs are kept with the Maulavi Abdul Ghaffar, Pesh
Imam. These are brought to the mosque on every Friday and
are kept back in the same place after Jumah prayers because
floor cloth often gets stolen from the masjid. It is for the
reason that all mats and floor cloth are not kept in the masjid.‖

(v) Notice dated 11 April 1945 of the Shia Waqf Board to the Sunni Waqf

Board before instituting a suit under Section 5(2) of the UP Muslim Waqf

Act 1936, challenging the notification dated 26 February 1944 declaring

the mosque as a Sunni Waqf172;

(vi) Notice dated 25 November 1948 of the Secretary, Sunni Waqf Board about

charge of Tauliat due to the death of the Mutawalli173;

(vii) The report of the Waqf Inspector dated 10/12 December 1949 regarding

the harassment of Muslims while going for prayers174; and

170 - 61- Suit 1
171 Exhibit A-66- Suit 1
172 Exhibit A-65- Suit 1
173 Exhibit A-62- Suit 1
174 -63- Suit 1
Exhibit A
Exhibit A

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(viii) Report of Waqf Inspector dated 23 December 1949 in regard to the

condition of Babri Masjid, stating that keys remained with the Muslims and

only Friday prayers were being offered175:

―I had to inquire into the present condition of Babri Masjid

Ayodhya and Qabrastan (graveyard) on 22 nd December, 49 I
spent the whole day making inquiry. My inquiry made me

175 -64- Suit 1

Exhibit A
Exhibit A

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aware about the following conditions and events. A period of

three months has elapsed to the arrival of Baba Raghunath
ostensibly to visit the janamasthan. He exhorted the Beragis
and Pujaris – worshippers forcefully that Ramayanpath –
recitation of Ramayan – should be done at janmasthan. This
message spread to all nearby and surrounding areas. After a
month of the departure of Baba Raghubardas, thousands of
Hindus and Pujaris and Pandits gathered there for Ramayan
path. The path (recitation) went on for weeks. In the
meantime the Beragis dug outside the front part of the Masjid
and part of Qabrasthan and leveled it to the ground. They
also erected a makeshift maker and put stones on the site of
some graves. There was police bandobast at the time of
recitation of Ramayan. Despite this, the graves were dug out.
Police arrested four people who were later released on bond.
Khawaja Rahmatullah‘s mausoleum which is nearby the
graveyard on a rising mound has also been dug out and
levelled to the ground. A Bairagi has started residing there.
The Bairagis‘ are squatting near the pucca grave which is
near the door of the courtyard adjacent to the walls of the
Masjid. The Bairagis have erected a hut. Before the
commencement of this recitation, the Bairagis had looted and
broken the fence. The muezzin was thrashed and thereafter
they tried to dug out the inscription on the Masjid. Two
Muslims who were strangers were beaten and they suffered
serious injuries. Now there are two camps outside the Masjid.
In one of them are stationed police constables and in another
sepoys of the battalions. The total numbers of (constables
and sepyoys) is about 7 to 8. Now the Masjid remains locked.
No Azaan is allowed nor Namaaz performed except on
the day and time of Jumaaah. The lock and the keys
remain with Muslims. But the police do not allow them to
open the lock. The lock is opened on the day of Jumaah,
i.e. Friday for two or three hours. During this period, the
Masjid is cleaned and Jumaah prayers are offered.
Thereafter it is locked as usual. At the time of Jummah
much noise is created. When the Namazis go downstairs,
shoes and clouds of earth are thrown at them. But
Muslims do not react to it out of fear. After Raghavdas, Mr
Lohia had also come to Ayodhya and he had addressed
people saying that flower plants should be planted on the
place of graves. A minister also came from Lucknow. The
Bairagis told him that Masjid is the Janmbhoomi. Help us get
it. He refused to do this by force. Hearing this Bairagis got
angry with him, and he had to return to Faizabad under Police
protection. In the meantime, in the Kanak Bhavan Mandir of
Ayodhya, Mahant Babasthan, Mahant Raghubardas,
Vedantiji, Narayan Das, Acharyaji wanted to call Muslims but
none came out there with the exception of Zahoor Ahmad.
Hindus asked Zahoor Ahmad to help them get the Masjid. He
was told that if it is done then we are brothers, otherwise, we

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are enemies. I stayed at Ayodhya during night. In the morning

I came to know that Bairagis are trying to occupy the Masjid
forcibly. It is Jumaah-Friday –today. When I reached the site,
10 to 15 Bairagis with clubs and axes were found present in
the courtyard of the Masjid and many Bairagis are sitting on
the door of the Masjid with clubs. Hindus of the surrounding
area are also gathering there. City Magistrate, Police Officer
of the City and other police force is deployed in sufficient
numbers. Muslims from Faizabad would certainly come to
offer of Jumaah (Friday) prayers. What would be their fate I
do not know. Now I am crossing the river and going to
Lakkadmandi Gonda.‖ (Emphasis supplied)

Justice Sudhir Agarwal held that the undertaking/agreement 176 for the payment of

salary including arrears to the Pesh Imam has not been proved. Besides being

exhibited in evidence, this document finds a reference in an application by the

Pesh Imam before the Waqf Inspector for the payment of his salary in terms of

the agreement, a copy of which was filed with the application. 177 As regards the

reports of the Waqf Inspector, the written submissions filed on behalf of the

Nirmohi Akhara in fact rely on both the reports. The reason indicated by Justice

Sudhir Agarwal for not relying on the reports – that no one has seen the Waqf

Inspector is specious. The report dated 10/12 December 1949 has been

specifically relied upon in the plaint in Suit 5 and in the Examination-in-Chief of

plaintiff 3 in Suit 5.

305. The above documents demonstrate:

(i) The steps taken after the riots of 1934 for the restoration of the mosque;

(ii) The repairs carried out by the contractor for repairing the mosque and

payments made by Public Works Department;

176 Exhibit A-7- Suit 1

177 Exhibit A-61

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(iii) The engagement of services of the Pesh Imam and the attendant dispute

pertaining to non-payment of his arrears of salary;

(iv) The report of the Waqf Inspector in December 1949 stating that the

Muslims were being harassed in offering prayers in the mosque as a result

of which only Friday prayers were being offered; and

(v) The apprehension expressed by the Waqf Inspector of danger to the

mosque.

306. In view of the above analysis of the oral evidence and documentary

material, the following conclusions can be drawn:

(i) There are serious infirmities in the oral accounts of Nirmohi witnesses that

the disputed structure was not a mosque but the Janmabhumi temple;

(ii) The documentary evidence relied on by Nirmohi Akhara does not establish

its possession of the inner courtyard and the structure of the mosque

within it, being the subject of Suit 3;

(iii) Contrary to the claims of Nirmohi Akhara, documentary evidence

establishes the existence of the structure of the mosque between 1934

and 1949; and

(iv) As regards namaz within the mosque, the Muslims were being obstructed

in offering prayers as a result of which by December 1949, Friday prayers

alone were being offered.

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This documentary evidence in regard to the presence and use of the mosque

until December 1949 is supported by the letter of the Superintendent of Police,

Faizabad dated 29 November 1949 specifically, referring to the attempts which

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were being made to surround the mosque so as to lead the Muslims to abandon

it. This is coupled with the letter dated 16 December 1949 of the District

Magistrate to the Chief Secretary seeking to allay the apprehensions in regard to

the safety of the mosque.

307. Suit 3 has been held to be barred by limitation. The oral and documentary

evidence have been analysed above to render a full adjudication of the claims of

Nirmohi Akhara: (i) denying the existence of the mosque; (ii) asserting that the

structure in the inner courtyard was a temple which was in its exclusive

possession; and (iii) denying the incident on the night between 22/23 December

1949. Nirmohi Akhara has failed to prove its assertions. The documentary

evidence will be of relevance in determining the objections raised by Nirmohi

Akhara (supported by the Sunni Central Waqf Board) to the maintainability of Suit

5. Whether Nirmohi Akhara has established that they were a shebait in service of

the deity of Lord Ram was an issue struck in Suit 5 and will hence be considered

while dealing with that suit. Some of the evidence which has been discussed

above is also of relevance on the question of title and will be re-visited at the

appropriate stage in the course of this judgment.

N. Suit 5: The deities

N.1 Array of parties

308. Suit 5 was instituted on behalf of the first and second plaintiffs through a

next friend who was impleaded as the third plaintiff. The first and second plaintiffs

are: ―Bhagwan Sri Ram Lala Virajman‖ and ―Asthan Sri Ram Janma Bhumi,

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Ayodhya‖. The third plaintiff was Sri Deoki Nandan Agarwala, a former Judge of

the Allahabad High Court. The third plaintiff was subsequently substituted by an

order of the High Court as a result of his death.

309. The first defendant is the legal representative of Gopal Singh Visharad (the

plaintiff in Suit 1); the second defendant was the plaintiff in Suit 2 (which was

subsequently withdrawn); the third defendant is Nirmohi Akhara (the plaintiff in

Suit 3); the fourth defendant is the Sunni Central Waqf Board (the plaintiff in Suit

4); the fifth and sixth defendants are Muslim residents of Ayodhya and Faizabad;

the seventh, eighth, ninth and tenth defendants are the State of Uttar Pradesh

and its officers; the eleventh defendant is the President of the All India Hindu

Mahasabha; the twelfth and thirteenth defendants represent the All India Arya

Samaj and the All India Sanatan Dharma Sabha respectively; the fourteenth

defendant was Sri Dharam Das, described as the Chela of Baba Abhiram Das,

who was allegedly involved in the incident which took place on 22/23 December

1949; defendants fifteen and sixteen are Hindu residents of Ayodhya and

Faizabad; defendant seventeen was a resident of District Faizabad (since

deleted); defendants eighteen and nineteen are Mahant Ganga Das and Swami

Govindacharya Manas Martand; defendant twenty was Umesh Chandra Pandey

who opposed the claim of the Nirmohi Akhara in Suit 3 (but did not lead any

evidence); defendant twenty-one is described as the ―Sri Ram Janma Bhumi

Nyas‖, a trust which has been impleaded through its managing trustee Sri Ashok

Singhal; defendants twenty-two to twenty-five are the Shia Central Board of

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Waqfs, individuals representing the Shias; defendant twenty-six is the General

Secretary of the Jamaitul Ulema Hind U P and defendant twenty-seven is a

Muslim resident of Faizabad.

N.2 No contest by the State of Uttar Pradesh

310. The State of Uttar Pradesh filed a statement (in Suit 4 of 1989) stating that

―the government is not interested in the properties in dispute‖ and the actions of

the officials in regard to the properties in dispute were bona fide in due discharge

of their official duties.

N.3 Pleadings

311. The plaint in Suit 5 proceeds on the foundation that the first and second

plaintiffs ―are juridical persons with Bhagwan Sri Rama as a presiding deity of

the place‖. The third plaintiff is described as a ‗Vaishnava Hindu‘. The plaint

adopts for its description of Ram Janmabhumi, ―two site plans of the building

premises and of the adjacent area known as Sri Ram Janma Bhumi prepared by

Shiv Shankar Lal‖ in discharge of his duty as a Commissioner appointed by the

Court of the Civil Judge, Faizabad in Suit 1. These site plans together with his

report are Annexures I, II and III to the plaint.

312. After setting out a history of the earlier suits instituted before the civil

court178 and the proceedings under Section 145, the plaint states that these suits

continue to remain pending ―with a dim prospect of their immediate hearing‖.

178 Suit 2 of 1950, Suit 25 of 1950, Suit 26 of 1959 and Suit 12 of 1961

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Though, the seva and puja of the plaintiff deities is stated to have been carried

out properly, it has been stated that darshan has been allowed only from behind a

barrier for Hindu devotees. The plaintiff deities and devotees are stated to be

―extremely unhappy‖ with the delay in the disposal of the suits, the deterioration

in the management of the affairs of the temple and with the alleged

misappropriation of the offerings of worshippers by pujaris and other temple staff.

The Hindu devotees, it has been stated, are desirous of having a new temple

constructed after removing the existing structure at Ram Janmabhumi. According

to the plaint, the head of the Ramananda Sampradaya was entrusted with the

task of addressing the mismanagement of the temple and facilitating the

construction of a new temple. This eventually led to the Deed of Trust dated 18

December 1985 which was registered with the Sub-Registrar. The trust has been

named the ―Sri Ram Janma Bhumi Nyas‖ and consists of ten trustees. In

addition, the Vishva Hindu Parishad, through its Marga Darshak Mandal is to

nominate four trustees, which it did. Further, five trustees have been nominated

from amongst ―eminent Hindu citizens of India‖. Of the aforesaid five persons,

the third plaintiff was nominated as one of the trustees. Ram Janmabhumi Nyas

is stated to be directly interested in the seva-puja and other affairs of the plaintiff

deities. The plaintiffs further indicate that the existing suits ―are inadequate‖ and

cannot result in a settlement of the dispute as neither the presiding deity,

Bhagwan Sri Ram Virajman, nor Asthan Sri Ram Janma Bhumi (both of whom

are stated to be juridical persons) were impleaded in the previous suits.

Moreover, it is alleged that some of the parties to the earlier suits are ―to some

extent‖ involved in seeking to gratify their personal interest by obtaining control

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over worship of the plaintiff deities. In this background, the plaintiffs have

instituted a suit of their own.

313. The plaint states that it is established by ―unimpeachable authority‖ that

the premises in dispute represent the place where Lord Ram was born. The

second plaintiff, described as ―Asthan Sri Ram Janma Bhumi‖, is stated to be

an independent object of worship, worshipped by the devotees as personifying

the divine spirit of Lord Ram. Hence, it has been averred that the land at Ram

Janmabhumi has possessed a juridical personality even prior to the construction

of the existing structure or the installation of idols within the central dome. It has

been stated that Hindus worship not merely the material form or shape of an idol

but the divine spirit which is invoked by consecration or prana pratishtha. It is

stated that the divine spirit is worshipped as a deity at the site of the second

plaintiff and hence it has been submitted that the place itself is a deity. The deity,

it has been submitted, being indestructible, continues to exist so long as the

place exists, and the place being land, continues to exist irrespective of any

construction on it.

314. The plaint proceeds to rely on the 1928 edition of the Faizabad Gazetteer,

in support of the plea that the ancient temple, called the Ram Janmabhumi

temple, was destroyed by Babur in 1528 and on its site, a mosque was built

largely with the materials of the destroyed temple, including the Kasauti pillars.

Yet, according to the plaint, the worshippers continued to worship Lord Ram

through symbols such as the Charan and Sita Rasoi and the idol of Lord Ram on

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the Ramchabutra within the enclosure. It has been submitted that no one could

enter the building except after passing through areas where Hindus worshipped.

The plaint disputes whether a mosque could validly be constructed in accordance

with Islamic tenets on the site of a Hindu temple which is surrounded by Hindu

places of worship. According to the plaintiffs, worshippers of the deities have

continued to pray at Ram Janmabhumi for centuries; the place belongs to the

deities and no valid waqf was ever created or could have been created. Despite

occasional trespass by the Muslim residents, it has been stated that title and

possession vested in the plaintiff deities. It is alleged that no prayers were offered

at the mosque. After independence, the graves surrounding Ram Janmabhumi

were dug up by the Bairagis and eventually on the night of 22/23 December

1949, an idol of Lord Ram was installed with due ceremony under the central

dome of the disputed building. This was followed by proceedings under Section

145 to which the plaintiff deities were not parties. In the alternate to the plea of

the original title vesting in the plaintiff deities, it has been stated that the deities

have been in possession and any claim of title adverse to the deities stands

extinguished by adverse possession.

315. The plaint sets out that Hindu devotees were desirous of constructing a

temple at the disputed site and, the ―active movement‖ was scheduled to

commence from 30 September 1989 with the foundation stone being laid on 9

November 1989. Nirmohi Akhara, it has been stated, has put forward a personal

interest in the management of the worship of the plaintiff-deities and there being

no other fit person to represent them, the third plaintiff has instituted the suit as

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next friend. It is averred that in order to remove any obstacles in the fulfilment of

the movement to construct a new temple, the entire premises at the disputed site

constitute ―one integral complex‖ with ―a single identity‖. The claim of the

Muslims is stated to be confined to the enclosure within the inner boundary wall.

The plaint was amended after the demolition of Babri Masjid in 1992 to

incorporate averments pertaining to the circumstances prior to, during and

following the demolition. According to the plaintiffs, shebaiti rights were taken

away and entrusted to the statutory receiver following the enactment of the

acquisition ordinance and the law enacted by Parliament.

The cause of action for the institution of the suit is stated to have accrued ―from

day to day‖ especially when the plans for construction of a new temple were

alleged to be obstructed by violent action on the part of certain Muslims.

On the above pleadings, two reliefs have been sought in Suit 5:

(a) A declaration that the entire premises of Sri Ram Janmabhumi described

in Annexures I, II and III belong to the plaintiff-deities; and

(b) A permanent injunction prohibiting the defendants from interfering with or

obstructing the construction of a new temple at Sri Ram Janmabhumi after

the demolition and removal of the existing buildings and structures.

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N.4 Written statements

Nirmohi Akhara

316. In response to Suit 5, Nirmohi Akhara filed its written statement submitting

that the suit instituted through a next friend is malicious and is a ―design to

damage the title and interest of the answering defendants‖. Nirmohi Akhara

denies the locus of the next friend as the third plaintiff to represent the deities. It

specifically denies the status of the second plaintiff as a juridical person.

Bhagwan Sri Ram, according to Nirmohi Akhara is installed not at Ram

Janmabhumi but in the temple known as the Janmabhumi temple for whose

charge and management it has instituted Suit 3. According to the written

statement, Asthan simply means a place and is not a juridical person. The third

plaintiff, it has been asserted is not a worshipper of the deity and is a Vaishnavite

and has no locus to represent the deity or the ―so-called Asthan‖. It has been

urged that there was an attempt to mobilise a sum of Rs. 25 crores for the

construction of a new temple. Nirmohi Akhara states that the birth-place of Lord

Ram is not in dispute and it is located at Ayodhya where the Ram Janmabhumi

temple stands. The Ram Janmabhumi temple is stated to be in the disputed land

which the Muslims claim to be a mosque. Asthan Janmabhumi is stated to be the

birth-place of Lord Ram comprising of the entire city of Ayodhya. Nirmohi Akhara

has claimed that it is the shebait of the idol of Lord Ram installed in the temple in

dispute and that it alone has the right to control, supervise, repair and reconstruct

the temple. It has been submitted that Nirmohis‘ suit was filed in 1959, whereas,

the Ram Janmabhumi Nyas has come into existence in 1985 ―with an obvious

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design to damage the title and interest of the Akhara‖. Nirmohi Akhara has

alleged that the idol of Lord Ram was always installed in the Ram Janmabhumi

temple; that the temple belongs to it and no one else has the right to construct a

new temple. Suit 5 has been opposed on the ground that the plaintiffs have ―no

real title to sue‖ and that the suit is an encroachment on the rights of the

Nirmohis to manage the temple. Hence, according to it, the disputed premises

mentioned by the plaintiffs in Suit 5 belong to the Nirmohi Akhara and the

plaintiffs cannot seek a declaration against the right and title of Nirmohi Akhara.

Accordingly, Nirmohi Akhara has prayed for the dismissal of Suit 5.

In its additional written statement, Nirmohi Akhara has stated that the outer

Sahan (courtyard) ―carried a little temple‖ of Lord Ram which was regularly

worshipped according to the customs prevailing among Ramanandi Bairagis. The

outer part of this temple is stated to have been in the management and charge of

Nirmohi Akhara as its shebait till the outer portion was attached on 16 February

1982 in Regular Suit 239 of 1982. The outer portion, it has been stated, has been

in possession and management of Nirmohi Akhara and the idol of Lord Ram

installed on Ramchabutra is stated to be a distinct legal entity owned by Nirmohi

Akhara. It has been submitted that the Magistrate‘s order of attachment under

Section 145 pertained only to the three-domed structure where the idol of Lord

Ram is stated to have been installed by Nirmohi Akhara from time immemorial

and which was always in its management and possession. In a further written

statement, Nirmohi Akhara has claimed that the constitution of the Ram

Janmabhumi Nyas is illegal.

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All India Hindu Mahasabha

317. The President of the All India Hindu Mahasabha filed a written statement

claiming that as a party to the Sri Ram Janmabhumi Nyas, it is directly dedicated

to the seva-puja and other affairs of the Ram Janmabhumi temple.

Sunni Central Waqf Board

318. The Sunni Central Waqf Board has opposed the suit of the plaintiff-deities.

In its written statement, it denies the juridical status of the first and second

plaintiffs and the locus of the third plaintiff to act as a next friend. According to the

Sunni Central Waqf Board, no deities were installed within the premises of Babri

Masjid until the idol was surreptitiously brought in on the night between 22-23

December 1949. The written statement denies the presence of a presiding deity

or of ―any Asthan‖. Placing reliance on the dismissal of the Suit of 1885

instituted by Mahant Raghubar Das, it has been submitted that the plaintiffs

cannot claim any portion of the Babri Masjid to have assumed a juridical

personality by the name of ―Ashthan Ram Janmabhumi‖, particularly in the

absence of the

installation of a deity or a personification in accordance with the tenets of Hindu

religion or law. The written statement contains a denial of the allegation that their

existed any temple at the site of Babri Masjid or that the mosque was constructed

after destroying it, with the material of the alleged temple. The mosque, it has

been averred, has always been used as a mosque since its construction during

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the regime of Babur. The land is stated to have belonged to the State when it was

constructed, and the mosque is claimed to have been built on vacant land. The

Ramchabutra is alleged to have been created around 1857. The possession of

the Muslims is stated to have been uninterrupted and continuous since the

construction of the mosque up to 23 December 1949 and hence, any right, title or

interest to the contrary would stand extinguished by adverse possession.

According to the written statement, regular prayers were offered in the mosque

up to 22 December 1949 and Friday prayers until 16 December 1949. According

to the written statement, the cause of action must be deemed to have accrued in

December 1949 when the property was attached, and the Muslims denied the

claim of the Hindus to perform puja in the mosque. Hence, the suit is stated to be

barred by limitation.

319. The fifth defendant179, in his written statement, has denied the locus of the

Nyas. Besides this, it has been submitted that the premises have always been a

mosque since its construction in the sixteenth century and were used by Muslims

for offering namaz and for no other purpose. The fifth defendant denied the

juridical status of the first and second plaintiffs and the locus of the third plaintiff.

In an additional written statement filed jointly by the Sunni Central Waqf Board

and the fifth defendant, the contents of the amended plaint have been denied

and it has been urged that the claim in regard to the idols stood extinguished

after they were removed on 6 December 1992.

179 Mohammad Hashim

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N.5 Issues and findings of the High Court

320. The issues which were framed in the Suit and the findings of the three

judges in the High Court are catalogued below:

1 Whether the first and second plaintiffs are juridical persons.

• Justice S U Khan – The idol is duly capable of holding property.

• Justice Sudhir Agarwal – Answered in the affirmative – both plaintiffs

1 and 2 are juridical persons.

• Justice D V Sharma – Decided in favour of the plaintiffs.

2 Whether the suit in the name of deities described in the plaint as the

first and second plaintiffs is not maintainable through the third

plaintiff as next friend.

• Justice S U Khan – Followed the decision of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Suit held to be maintainable.

• Justice D V Sharma – Suit held to be maintainable.

3(a) Whether the idol in question was installed under the central dome of

the disputed building (since demolished) in the early hours of

December 23, 1949 as alleged by the plaintiff in paragraph 27 of the

plaint as clarified in their statement under Order X Rule 2 of the CPC.

• Justice S U Khan - The idols were placed inside the mosque for the

first time during the night of 22/23 December 1949.

• Justice Sudhir Agarwal – Answered in the affirmative.

• Justice D V Sharma – Answered in the affirmative.

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3(b) Whether the same idol was reinstalled at the same place on a

Chabutra under the canopy.

• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the affirmative.

• Justice D V Sharma - Answered in the affirmative.

3(c) Whether the idols were placed at the disputed site on or after 6

December 1992 in violation of the court‘s order dated 14 August 1989

and 15 November 1991.

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the negative.

• Justice D V Sharma - Decided in favour of the plaintiffs.

3(d) If the aforesaid issue is answered in the affirmative, whether the idols

so placed still acquire the status of a deity.

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal - Answered in the affirmative.

• Justice D V Sharma - Answered in the affirmative.

4 Whether the idols in question had been in existence under the

―Shikhar‖ prior to 6 December 1992 from time immemorial as alleged

in paragraph 44 of the additional written statement of Nirmohi Akhara

(the third defendant).

• Justice S U Khan – The idols were placed inside the mosque for the

first time on 22-23 December 1949.

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• Justice Sudhir Agarwal - Answered in the negative; the idols under

the central dome were in existence prior to 6 December 1992 but

were placed during the night of 22-23 December 1949.

• Justice D V Sharma – The idols were not under the central dome

prior to 22-23 December 1949.

5 Is the property in question properly identified and described in the

plaint.

• Justice S U Khan - No temple was demolished for constructing the

mosque. Until the mosque was constructed during the reign of Babur,

the premises were neither treated nor believed to be the birth-place of

Lord Ram.

• Justice Sudhir Agarwal – There is no ambiguity in the identification

or description of the property.

• Justice D V Sharma – Answered in favour of the plaintiffs.

6 Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their

next friend and is the suit not competent on this account.

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the negative, in favour of the

plaintiffs.

• Justice D V Sharma – Decided in favour of the plaintiffs.

7 Whether Nirmohi Akhara (the third defendant) alone is entitled to

represent the first and second plaintiffs, and is the suit not competent

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on that account as alleged in paragraph 49 of the additional written

statement of Nirmohi Akhara (the third defendant).

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

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Justice Sudhir Agarwal – Answered in the negative against Nirmohi

Akhara, in favour of the plaintiffs.

• Justice D V Sharma – Answered against Nirmohi Akhara, in favour of the

plaintiffs.

8 Is the defendant Nirmohi Akhara the ―Shebait‖ of Bhagwan Sri Ram

installed in the disputed structure.

• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered against Nirmohi Akhara.

• Justice D V Sharma – Answered against Nirmohi Akhara, held that

Nirmohi Akhara is incompetent to represent the first and second plaintiffs.

9 Was the disputed structure a mosque known as Babri Masjid?

• Justice S U Khan – The mosque was constructed by or under the orders

of Babur. Until 1934, Muslims offered regular prayers and thereafter, until

22 December 1949 only Friday prayers were offered.

• Justice Sudhir Agarwal – Answered against the plaintiffs.

• Justice D V Sharma – Answered against the Sunni Central Waqf Board

and in favour of the plaintiffs.

10 Whether the disputed structure could be treated to be a mosque on the

allegations contained in paragraph 24 of the plaint.

• Justice S U Khan – The mosque was a valid mosque.

• Justice Sudhir Agarwal – Answered in the affirmative.

• Justice D V Sharma – The mosque was constructed upon demolition of

the temple.

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
11 Whether on the averments made in paragraph 25 of the plaint, no valid

waqf was created in respect of the structure in dispute to constitute it

as a mosque.

• Justice S U Khan – The mosque is a valid mosque.

• Justice Sudhir Agarwal – Answered in the affirmative.

• Justice D V Sharma – No valid waqf with respect to the disputed property.

12 Deleted vide order dated 23 February 1996.

13 Whether the suit is barred by limitation.

• Justice S U Khan – The suit is not barred by limitation.

• Justice Sudhir Agarwal – The suit is not barred by limitation.

• Justice D V Sharma – The suit is not barred by limitation.

14 Whether the disputed structure claimed to be Babri Masjid was erected

after demolishing Janmasthan temple at its site.

• Justice S U Khan – No temple was demolished for the construction of the

mosque. Until the mosque was constructed during the reign of Babur, the

premises were not believed to be the birth-place of Lord Ram.

• Justice Sudhir Agarwal – Answered in the affirmative.

• Justice D V Sharma – Decided in favour of the plaintiffs, against the

Sunni Central Waqf Board.

15 Whether the disputed structure claimed to be Babri Masjid was always

used only by the Muslims regularly for offering namaz ever since its

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alleged construction in 1528 A.D. to 22 December 1949 as alleged by

the defendants 4 and 5.

Justice S U Khan – Until 1934, Muslims were offering regular prayers in

the mosque. Thereafter, until 22 December 1949, only Friday prayers were

offered.

• Justice Sudhir Agarwal – At least from 1860, namaz was offered in the

inner courtyard. The last namaz was on 16 December 1949.

• Justice DV Sharma – Connected with Issue Nos. 1-

B(c),

2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit 4 which were decided

against the Sunni Central Waqf Board.

16 Whether the title of plaintiffs 1 and 2, if any, was extinguished as alleged

in paragraph 25 of the written statement of defendant 4. If yes, have

plaintiffs 1 and 2 reacquired title by adverse possession as alleged in

paragraph 29 of the plaint.

• Justice S U Khan – Both parties were in joint possession before 1855 and

hence, there was no need to decide the issue of adverse possession.

• Justice Sudhir Agarwal – The title of the first and second plaintiffs has

never been extinguished.

• Justice DV Sharma - Connected with Issue Nos.

1B-(c),

2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit 4 which were decided

against the Sunni Central Waqf Board.

17 Deleted vide order dated 23 February 1996.

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
18 Whether the suit is barred by Section 34 of the Specific Relief Act as

alleged in paragraph 42 of the additional written statement of

defendant 3 and also as alleged in paragraph 47 of the written

statement of defendant 4 and paragraph 62 of the written statement of

defendant 5.

• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the negative against the third,

fourth and fifth defendants.

• Justice D V Sharma – In favour of the plaintiffs, against the defendants.

19 Whether the suit is bad for non-joinder of necessary parties, as pleaded

in paragraph 43 of the additional written statement of defendant 3.

• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the negative.

• Justice D V Sharma – The suit held to maintainable.

20 Whether the alleged Trust creating the Nyas, defendant 21, is void on

the facts and grounds stated in paragraph 47 of the written statement

of defendant 3.

• Justice S U Khan – Not answered.

• Justice Sudhir Agarwal – Not answered.

• Justice D V Sharma – Answered in favour of the plaintiffs.

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21 Whether the idols in question cannot be treated as deities as alleged in

paragraphs 1,11,12,21,22,27 and 41 of the written statement of

defendant 4 and in paragraph 1 of the written statement of defendant

5.

 Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

Justice Sudhir Agarwal and Justice D V Sharma - Answered against the

Sunni Central Waqf Board and fifth defendant.

22 Whether the premises in question or any part thereof is by tradition,

belief and faith the birth-place of Lord Ram as alleged in paragraphs

19 and 20 of the plaint? If so, its effect.

• Justice S U Khan – Neither was any temple demolished for constructing

the mosque nor until the construction of the mosque were the premises

treated or believed to be birth-place of Lord Ram.

• Justice Sudhir Agarwal – The place of birth of Lord Ram as believed and

worshipped by Hindus is covered under the central dome of the

threedomed structure in the inner courtyard of the premises in dispute.

• Justice D V Sharma – Connected with Issue Nos 1, 1(a), 1(b),1B-(b),

11,19(d),19(e) and 19(f) in Suit 4. Decided against the Sunni Central Waqf

Board.

23 Whether the judgment in Suit of 1885 filed by Mahant Raghubar Das in

the Court of Special Judge, Faizabad is binding upon the plaintiffs by

application of the principles of estoppel and res judicata as alleged

by the defendants 4 and 5.

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
• Justice S U Khan - Section 11 of the CPC is not attracted as virtually

nothing was decided in the Suit of 1885.

• Justice Sudhir Agarwal – Answered in the negative.

• Justice D V Sharma – Answered in favour of the plaintiffs.

24 Whether worship has been done of the alleged plaintiff-deity on the

premises in the suit since time immemorial as alleged in paragraph 25

of the plaint.

• Justice S U Khan - Neither was any temple demolished for constructing

the mosque nor were the premises treated or believed to be the birth-place

of Lord Ram until the mosque was constructed.

• Justice Sudhir Agarwal – Worship of the first and second plaintiffs has

been since time immemorial: issue answered in the affirmative.

• Justice DV Sharma – Connected with Issue Nos. 1-

B(c),

2,4,12,13,14,15,19(a),19(b),19(c), 27 & 28 of Suit 4. Answered against the

Sunni Central Waqf Board.

25 Whether the judgment and decree dated 30 March 1946 passed in Suit

no 29 of 1945 is not binding upon the plaintiffs as alleged by the

plaintiffs.

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal - The plaintiffs were not a party to the suit and

the judgment is therefore not binding on them.

• Justice DV Sharma – Decided in favour of the plaintiffs.

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26 Whether the suit is bad for want of notice under Section 80 CPC as

alleged by the defendants 4 and 5.

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in favour of the plaintiffs.

• Justice D V Sharma - Answered in favour of the plaintiffs.

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27 Whether the plea of suit being bad for want of notice under Section

80 CPC can be raised by defendants 4 and 5.

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – Answered in favour of the plaintiffs.

• Justice D V Sharma - Answered in favour of the plaintiffs.

28 Whether the suit is bad for want of notice under Section 65 of the U.P.

Muslim Waqf Act 1960 as alleged by defendants 4 and 5. If so, its

effect.

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – The provision is not applicable.

• Justice D V Sharma – Decided in favour of the plaintiffs.

29 Whether the plaintiffs are precluded from bringing the present suit on

account of dismissal of Suit 57 of 1978 (Bhagwan Sri Ram Lala v

State) of the Court of Munsif Sadar, Faizabad.

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal and Justice D V Sharma - Answered in favour of

the plaintiffs.

30 To what relief, if any, are plaintiffs or any of them entitled?

• Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.

• Justice Sudhir Agarwal – The suit was partly decreed in accordance with

the directions contained in paragraph 4566.

• Justice D V Sharma – The plaintiffs were held entitled to relief and the suit

was decreed.

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321. Justice Sudhir Agarwal granted the following relief in the Suit:

―(i) It is declared that the area covered by the central dome

of the three domed structure, i.e., the disputed structure being
the deity of Bhagwan Ram Janamsthan and place of birth of
Lord Rama as per faith and belief of the Hindus, belong to
plaintiffs (Suit-5) and shall not be obstructed or interfered in
any manner by the defendants. This area is shown by letters
AA BB CC DD is Appendix 7 to this judgment.
(ii) The area within the inner courtyard denoted by letters B C
D L K J H G in Appendix 7 (excluding (i) above) belong to
members of both the communities, i.e., Hindus (here
plaintiffs, Suit-5) and Muslims since it was being used by both
since decades and centuries. It is, however, made clear that
for the purpose of share of plaintiffs, Suit-5 under this
direction the area which is covered by (i) above shall also be
included.
(iii) The area covered by the structures, namely, Ram
Chabutra, (EE FF GG HH in Appendix 7), Sita Rasoi (MM NN
OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix
7) in the outer courtyard is declared in the share of Nirmohi
Akhara (defendant no. 3) and they shall be entitled to
possession thereof in the absence of any person with better
title.
(iv) The open area within the outer courtyard (A G H J K L E F
in Appendix 7) (except that covered by (iii) above) shall be
shared by Nirmohi Akhara (defendant no. 3) and plaintiffs
(Suit-5) since it has been generally used by the Hindu people
for worship at both places.
(iv-a) It is however made clear that the share of muslim
parties shall not be less than one third (1/3) of the total area
of the premises and if necessary it may be given some area
of outer courtyard. It is also made clear that while making
partition by metes and bounds, if some minor adjustments are
to be made with respect to the share of different parties, the
affected party may be compensated by allotting the requisite
land from the area which is under acquisition of the
Government of India.
(v) The land which is available with the Government of India
acquired under Ayodhya Act 1993 for providing it to the
parties who are successful in the suit for better enjoyment of
the property shall be made available to the above concerned
parties in such manner so that all the three parties may utilise
the area to which they are entitled to, by having separate
entry for egress and ingress of the people without disturbing
each others rights. For this purpose the concerned parties
may approach the Government of India who shall act in
accordance with the above directions and also as contained
in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).

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(vi) A decree, partly preliminary and partly final, to the effect

as said above (i to v) is passed. Suit-5 is decreed in part to
the above extent. The parties are at liberty to file their
suggestions for actual partition of the property in dispute in
the manner as directed above by metes and bounds by
submitting an application to this effect to the Officer on
Special Duty, Ayodhya Bench at Lucknow or the Registrar,
Lucknow Bench, Lucknow, as the case may be.
(vii) For a period of three months or unless directed
otherwise, whichever is earlier, the parties shall maintain
status quo as on today in respect of property in dispute.‖

Justice S U Khan issued the following directions:

―Accordingly, all the three sets of parties, i.e. Muslims,

Hindus and Nirmohi Akhara are declared joint title holders of
the property/ premises in dispute as described by letters A B
C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal,
Pleader/ Commissioner appointed by Court in Suit No.1 to the
extent of one third share each for using and managing the
same for worshipping. A preliminary decree to this effect is
passed.
However, it is further declared that the portion below the
central dome where at present the idol is kept in makeshift
temple will be allotted to Hindus in final decree.
It is further directed that Nirmohi Akhara will be allotted share
including that part which is shown by the words Ram
Chabutra and Sita Rasoi in the said map.
It is further clarified that even though all the three parties are
declared to have one third share each, however if while
allotting exact portions some minor adjustment in the share is
to be made then the same will be made and the adversely
affected party may be compensated by allotting some portion
of the adjoining land which has been acquired by the Central
Government.
The parties are at liberty to file their suggestions for actual
partition by metes and bounds within three months.‖

Justice D V Sharma decreed the suit of the plaintiffs in the following terms:
―Plaintiffs' suit is decreed but with easy costs. It is hereby
declared that the entire premises of Sri Ram Janm Bhumi at
Ayodhya as described and delineated in annexure nos. 1 and
2 of the plaint belong to the plaintiff nos. 1 and 2, the deities.
The defendants are permanently restrained from interfering
with, or raising any objection to, or placing any obstruction in
the construction of the temple at Ram Janm Bhumi Ayodhya
at the site, referred to in the plaint.‖

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N.6 Shebaits: an exclusive right to sue?

The role and position of a shebait

322. Courts recognise a Hindu idol as the material embodiment of a

testator‘s pious purpose. Juristic personality can also be conferred on a

Swayambhu deity which is a self-manifestation in nature. An idol is a juristic

person in which title to the endowed property vests. The idol does not enjoy

possession of the property in the same manner as do natural persons. The

property vests in the idol only in an ideal sense. The idol must act through some

human agency which will manage its properties, arrange for the performance of

ceremonies associated with worship and take steps to protect the endowment,

inter alia by bringing proceedings on behalf of the idol. The shebait is the human

person who

discharges this role.

323. Nirmohi Akhara has instituted Suit 3 on the ground that it is the shebait

of the deities of Lord Ram at the disputed site. Whether or not Nirmohi Akhara is a

shebait, has a material bearing on the determination of rights inter se between the

parties in Suits 3 and 5. To adjudicate on this controversy, it is necessary to

analyse the position of a shebait in our law.

324. An early decision was rendered by the Privy Council in Posunno

Kumari Debya v Golab Chand Baboo.180 A suit was instituted by the shebaits of

180 (1875) 14 L Beng LR 450

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an idol against their immediate predecessor to set aside two execution decrees

directing the sale of the property. Analysing whether the actions of a shebait binds

subsequent shebaits, the Privy Council, speaking through Justice ME Smith held:

―It would seem to follow that the person so entrusted must,

of necessity, be empowered to do whatever may be required
for the service of the idol and for the benefit and preservation
of its property, at least to as great a degree as the manager of
an infant heir. If this were not so, the estate of the idol might
be destroyed or wasted, and its worship discontinued for want
of necessary funds to preserve and maintain them.‖

The Privy Council summarised in the above extract the true function and purpose

underlying the concept of a shebait. Since, the dedicated property vests in an idol

in an ideal sense, the shebait is entrusted with its management. An idol cannot

personally take actions required for the benefit and preservation of its property.

The idol must necessarily act through a human agent and it is for this reason that

the manager of the idol is conferred by law with the status of a shebait. The law

recognises the legal personality of the idol to facilitate the protection of the rights

and the duties owed to the idol. The natural personality of the shebait is the

human agency through which the needs and concerns of the idol are fulfilled.

325. The law expounded in 1875 by the Privy Council has found resonance

in a decision of this Court in 1979. In Profulla Chorone Requitte v Satya

Chorone Requitte181, a question arose whether it was the founder‘s intention to

confer the status of a shebait upon the person designated as trustees in his will.

Justice RS Sarkaria, speaking for a two judge Bench of this Court held:

―20. … Property dedicated to an idol vests in it in an ideal

sense only; ex necessitas, the possession and management
181 (1979) 3 SCC 409

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has to be entrusted to some human agent. Such an agent of

the idol is known as shebait in Northern India. The legal
character of a shebait cannot be defined with precision and
exactitude. Broadly described, he is the human ministrant and
custodian of the idol, its earthly spokesman, its authorised
representative entitled to deal with all its temporal affairs and
to manage its property.‖

326. The recognition of a person or a group of persons as shebaits is a

substantive conferment of the right to manage the affairs of the deity. A necessary

adjunct of the status of a shebait, is the right to brings actions on the behalf of an

idol and bind it and its properties to the outcomes. The purpose for which legal

personality is conferred upon an idol as the material embodiment of the pious

purpose is protected and realised through the actions of the human agent, that is

the shebait. The shebait is entrusted with the power and the duty to carry out the

purpose of the donor in respect of the idol and its properties. In the vast majority

of cases, a shebait is appointed in accordance with the terms of a deed of

dedication by which property is endowed to an idol. It is for the protection of this

property that the law recognises either the donor or a person named in the deed

of endowment as the shebait. In the absence of an expressly appointed or

identified shebait, the law has ensured the protection of the properties of the idol

by the recognition of a de facto shebait. Where a person is in complete and

continuous management of the deity‘s affairs coupled with long, exclusive and

uninterrupted possession of the appurtenant property, such a person may be

recognised as a shebait despite the absence of a legal title to the rights of a

shebait. This will be adverted to in the course of the judgement.

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327. The position of a shebait in Hindu Law is distinct from the position of a

trustee in English Law. Before the Privy Council in Vidya Varuthi Thirtha v

Balusami Ayyar182 the question was whether the terms ―conveyed in trust‖ and

―trustee‖ as they appear in Article 134 of the Limitation Act 1908 apply to

properties endowed to the Mahant of a Hindu mutt. The Privy Council rejected the

contention that persons managing endowed properties are in the position of

trustees under English Law. Justice Ameer Ali held:

―It is also to be remembered that a ―trust‖ in the sense in

which the expression is used in English Law, is unknown in
the Hindu system, pure and simple. Hindu piety found
expression in gifts to idols and images consecrated and
installed in temples, to religious institutions of every
kind….Religious institutions, known under different names,
and regarded as possessing the same ―juristic‖ capacity,
and gifts are made to them eo nomine …When the gift is
directly to an idol or a temple, the seisin to complete the
gift is necessarily effected by human agency. Called by
whatever name, he is only the manager and custodian of
the idol of the institution. In no case was the property
conveyed to or vested in him, nor is he a ‗trustee‘ in the
English sense of the term, although in view of the
obligations and duties vesting on him, he is answerable
as a trustee in the general sense, for mal-
administration…it would follow that an alienation by a
manager or superior by whatever name called cannot be
treated as the act of a ―trustee‖ to whom property has
been ―conveyed in trust‖ and who by virtue thereof has
the capacity vested in him which is possessed by a
―trustee‖ in English law.‖
…
...Neither under the Hindu law nor in the Mahomedan system
is any property ‗conveyed‘ to a shebait or a mutavalli in the
case of a dedication. Nor is any property vested in him,
whatever property he holds for the idol or the institution he
holds as manager with certain beneficial interest regulated by
custom and usage.‖
(Emphasis supplied)

182 AIR 1922 PC 123

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328. The decision in Vidya Varuthi affirms the distinction between the position of

a shebait in Hindu Law and a trustee in English Law. Unlike in the case of a trust,

dedicated property does not legally vest in the shebait. The purpose for which

property is dedicated to an idol is executed and protected by the shebait. Though

the dedicated property does not vest in the shebait, they are responsible for

managing the properties and are answerable in law for any mismanagement of

the endowed properties. The shebait holds the property of an idol for the benefit

of the idol. There is thus a distinction between the proprietary right of a trustee in

English law and a shebait in Hindu Law. Chief Justice B K Mukherjea, in his

seminal work ―Hindu Law of Religious Charitable Trusts‖ states:

―In English law the legal estate in the trust property vests in
the trustee who holds it for the benefit of the cestui que trust.
In a Hindu religions endowment, the entire ownership of the
dedicated property is transferred to the deity or the institution
itself as a juristic person, and the Shebait or Mahant is a mere
manager.‖183

The above distinction was affirmed by this Court in Profulla Chorone. In dealing

with the concept of a shebait, Justice RS Sarkaria held:

―As regards the administration of the debutter, his position is

analogous to that of a trustee; yet, he is not precisely in the
position of a trustee in the English sense, because under
Hindu Law, property absolutely dedicated to an idol,
vests in the idol, and not in the shebait. Although the
debutter never vests in the shebait, yet, peculiarly enough,
almost in every case, the shebait has a right to a part of the
usufruct, the mode of enjoyment, and the amount of the
usufruct depending again on usage and custom, if not
devised by the founder.‖
(Emphasis supplied)

183 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at page 204

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329. These observations affirm that the position of a shebait is distinct from

that of a trustee in English law. The dedicated property legally vests in the idol in

an ideal sense and not in the shebait. A shebait does not bring an action for the

recovery of the property in a personal capacity but on behalf of the idol for the

protection of the idol‘s dedicated property. Ordinarily, a deed of dedication will not

contain a provision for the duties of the shebait. However, an express stipulation

or even its absence does not mean that the property of the idol vests in the

shebait. Though the property does not legally vest in the shebait, the shebait may

have some interest in the usufruct generated from it. Appurtenant to the duties of

a shebait, this interest is reflected in the nature of the office of a shebait.

330. In Manohar Mukherji v Bhupendranath Mukherji184, the question

before a Full Bench of the Calcutta High Court was whether shebaitship in Hindu

law is property or an office to which the founder of an endowment is competent to

appoint or nominate persons in any order of succession. Surveying the precedent,

Justice Mukerji held:

―…I can find no authority for the proposition that the limited
ownership which a shebait, in ordinary cases, exercises over
debuttor property is not property in the eye of Hindu law…
having regard to the rights which ordinarily attach to the
office of a shebait, the office and the property of the
endowment go together and that when it is a question
between two persons one claiming and the other
disputing a right to be the shebait, the question is a
question of property…The religious office itself, of course,
cannot be the object of sale, and jewels and other materials
used in religious worship, to the custody of which the alleged
vendor is entitled and to the careful custody of which he is
bound, are by all systems of law and by Hindu law more
emphatically than by another, absolutely extra commercium.‖
(Emphasis supplied)

184 ILR (1933) 60 Cal 452

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331. In addition to the duties that must be discharged in relation to the

debutter property, a shebait may have an interest in the usufruct of the debutter

property. In this view, shebaitship is not an office simpliciter, but is also property

for the purposes of devolution.215 This view has been affirmed by this Court in

Angurbala Mullick v Debabrata Mullick216. The controversy in that case was

whether the appellant, as the widow of the shebait, was entitled to act as the

shebait of the idol instead of the minor son of the shebait borne from his first

marriage who was the respondent. It was contended that the office of shebaitship

would devolve in accordance with the Hindu Women‘s Right to Property Act 1937.

Justice BK Mukherjea speaking for a four judge Bench of this Court accepted this

contention and held:

―12…But though a shebait is a manager and not a trustee in

the technical sense, it would not be correct to describe the
shebaitship as a mere office. The shebait has not only duties
to discharge in connection with the endowment, but he has a
beneficial interest in the debutter property. As the Judicial
Committee observed in the above case, in almost all such
endowments the shebait has a share in the usufruct of the
debutter property which depends upon the terms of the grant
or upon custom or usage. Even where no emoluments are
attached to the office of the shebait, he enjoys some sort of
right or interest in the endowed property which partially at
least has the character of a proprietary right. Thus, in the
conception of shebaiti both the elements of office and
property, of duties and personal interest, are mixed up and
blended together; and one of the elements cannot be
detached from the other. It is the presence of this personal or

215
Approved by Privy Council in Ganesh Chunder Dhur v Lal Behary Dhur (1935-36) 63 IA 448, and
Bhabatarini Debi v Ashalata Debi (1942-43) 70 IA 57
216
1951 SCR 1125
beneficial interest in the endowed property which invests
shebaitship with the character of proprietary rights and
attaches to it the legal incidents of property.‖

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The Court held that a shebait has a beneficial interest in the usufruct of the

debutter property. This beneficial interest is in the form of a proprietary right.

Though the role of the shebait is premised on the performance of certain duties

for the idol and the benefits are appurtenant, neither can be separated from the

other. Thus, office and property are both blended in shebaitship, the personal

interest of a shebait being appurtenant to their duties.185

Pujaris

332. A final point may be made with respect to shebaits. A pujari who

conducts worship at a temple is not merely, by offering worship to the idol,

elevated to the status of a shebait. A pujari is a servant or appointee of a shebait

and gains no independent right as a shebait despite having conducted the

ceremonies for a long period of time. Thus, the mere presence of pujaris does not

vest in them any right to be shebaits. In Gauri Shankar v Ambika Dutt186, the

plaintiff was the descendant of a person appointed as a pujari on property

dedicated for the worship of an idol. A suit was instituted for claiming partition of

the right to worship in the temple and a division of the offerings. A Division Bench

of the Patna High Court held that the relevant question is whether the debutter

appointed the pujari as a shebait. Justice Ramaswami held:

―7…It is important to state that a pujari or archak is not a

shebait. A pujari is appointed by the Shebait as the purohit to
conduct the worship. But that does not transfer the rights and
obligations of the Shebait to the purohit. He is not entitled, to
be continued as a matter of right in his office as pujari. He is
merely a servant appointed by the Shebait for the
185 Affirmed in Badri Nath v Punna, AIR 1979 SC 1314; Profulla Chorone Requitte v Satya Chorone Requitte,
(1979) 3 SCC 409
186 AIR 1954 Pat 196

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performance of ceremonies. Where the appointment of a

purohit has been at the will of the founder the mere fact that
the appointees have performed the worship for several
generations, will not confer an independent right upon the
members of the family so appointed and will not entitle them
as of right to be continued in office as priest…‖

333. A shebait is vested with the authority to manage the properties of the

deity and ensure the fulfilment of the purpose for which the property was

dedicated. As a necessary adjunct of this managerial role, a shebait may hire

pujaris for the performance of worship. This does not confer upon the appointed

pujaris the status of a shebait. As appointees of the shebait, they are liable to be

removed from office and cannot claim a right to continue in office. The distinction

between a shebait and a pujari was recognised by this Court in Sree Sree

Kalimata

Thakurani of Kalighat v Jibandhan Mukherjee.187 A suit was instituted under

Section 92 of the Code of Civil Procedure 1908 for the framing of a scheme for

the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani

and her associated deities. A Constitution Bench of this Court, speaking through

Justice JR Mudholkar held:

―…It is wrong to call shebaits mere pujaris or archakas. A

shebait as has been pointed out by Mukherjea J. (as he then
was), in his Tagore Law Lectures on Hindu Law of Religious
and Charitable Trusts, is a human ministrant of the deity while
a pujari is appointed by the founder or the shebait to conduct
worship. Pujari thus is a servant of the shebait. Shebaitship is
not mere office, it is property as well.‖

334. A pujari is appointed by the founder or by a shebait to conduct worship.

This appointment does not confer upon the pujari the status of a shebait. They are

187 AIR 1962 SC 1329

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liable to be removed for any act of mismanagement or indiscipline which is

inconsistent with the performance of their duties. Further, where the appointment

of a pujari has been at the will of the testator, the fact that appointees have

performed the worship for several generations does not confer an independent

right upon the appointee or members of their family and will not entitle them as of

right to be continued in office as priests. Nor does the mere performance of the

work of a pujari in and of itself render a person a shebait.

An exclusive right to sue?

335. The position of a shebait is a substantive position in law that confers

upon the person the exclusive right to manage the properties of the idol to the

exclusion of all others. In addition to the exclusive right to manage an idol‘s

properties, the shebait has a right to institute proceedings on behalf of the idol.

Whether the right to sue on behalf of the idol can be exercised only by the shebait

(in a situation where there is a shebait) or can also be exercised by the idol

through a ‗next friend‘ has been the subject of controversy in the proceedings

before us. The plaintiff in Suit 3 - Nirmohi Akhara contends that the Nirmohis are

the shebaits of the idols of Lord Ram at the disputed site. Mr S K Jain, learned

Senior Counsel appearing on behalf of Nirmohi Akhara, urged that absent any

allegation of maladministration or misdemeanour in the averments in the plaint in

Suit 5, Devki Nandan Agarwal could not have maintained a suit on behalf of the

idols as a next friend. Mr Jain placed significant reliance on the contention that

the plaint in Suit 5 does not aver any mismanagement by the Nirmohis. Mr S K

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Jain urged that though the plaintiffs in Suit 5 (which was instituted in 1989) were

aware of Suit 3 which was instituted by Nirmohi Akhara (in 1959) claiming as a

shebait, the plaint in Suit 5 does not challenge the position of Nirmohi Akhara as a

shebait. Consequently, Nirmohi Akhara urged that a suit by a next friend on behalf

of the idol is not maintainable. The argument that Nirmohi Akhara is the shebait of

the idols and is consequently vested with the exclusive right to bring an action on

behalf of the idols of Lord Ram was also supported by Dr Dhavan, learned Senior

Counsel appearing on behalf of the plaintiffs in Suit 4. He urged that despite his

submission that Suit 3 was barred by limitation, a dismissal of that suit only

extinguished the remedy of Nirmohi Akhara to file a suit for possession but did not

extinguish the Nirmohi‘s rights as shebaits. Therefore, in

Dr Dhavan‘s submission, Nirmohi Akahara continued to be shebaits and possess

an exclusive right to sue on behalf of the idols of Lord Ram even in 1989. This, it

is urged, renders Suit 5 not maintainable.

336. The challenge to the maintainability of Suit 5 is premised on the

contention that only a shebait can sue on behalf of the idol. The question of who

can sue on behalf of the idol arises due to the unique nature of the idol. The idol is

a juristic person and the owner of the debutter property, but (as we have

discussed earlier) only in an ideal sense. In law, the idol is capable of suing and

being sued in its own name. However, for all practical purposes any suit by the

idol must necessarily be brought by a human actor. In Maharaja Jagadindra

Nath Roy Bahadur v Rani Hemanta Kumari Debi188 the plaintiff instituted a suit

as shebait of an idol alleging dispossession of certain lands by the defendant. The

188 (1903-04) 31 IA 203

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defendant resisted the suit on the ground of limitation. The shebait alleged that at

the time of the dispossession, he was a minor and therefore the period of

limitation did not begin against him until he attained majority. The Privy Council,

speaking through Sir Arthur Wilson held:

―But assuming the religious dedication to have been of the

strictest character, it still remains that the possession and
management of the dedicated property belongs to the
shebait. And this carries with it the right to bring
whatever suits are necessary for the protection of the
property. Every such right of suit is vested in the shebait,
not in the idol. And in the present case the right to sue
accrued to the Plaintiff when he was under age. The case
therefore falls within the clear language of sec. 7 of the
Limitation Act which says that: ―if a person entitled to
institute a suit … be, at the time from which the period of
limitation is to be reckoned, a minor,‖ he may institute the suit
after coming of age within a time, which in the present case
would be three years.‖
(Emphasis supplied)

The Privy Council examined whether, at the time of the dispossession, limitation

began running against the shebait. In doing this, the Privy Council located the

right to sue as vested in the shebait and not the idol. Ultimately, the Privy Council

held that the suit was not barred by limitation as the shebait was a minor at the

time of the dispossession. Thus, it was not relevant whether or not limitation ran

against the deity‘s right to sue as such right vested in the shebait.

337. Ordinarily, the right to sue on behalf of the idol vests in the shebait. This

does not however mean that the idol is deprived of its inherent and independent

right to sue in its own name in certain situations. The property vests in the idol. A

right to sue for the recovery of property is an inherent component of the rights that

flow from the ownership of property. The shebait is merely the human actor

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through which the right to sue is exercised. As the immediate protector of the idols

and the exclusive manager of its properties, a suit on behalf of the idol must be

brought by the shebait alone. Where there exists a lawfully appointed shebait who

is able and willing to take all actions necessary to protect the deity‘s interests and

to ensure its continued protection and providence, the right of the deity to sue

cannot be separated from the right of the shebait to sue on behalf of the deity. In

such situations, the idol‘s right to sue stands merged with the right of the shebait

to sue on behalf of the idol. This understanding is summarised by Justice

B K Mukherjea in ―The Hindu Law of Religious and Charitable Trusts‖ in the

following manner:

―This decision [in Jagadindra Nath], therefore, establishes

three things: -
(1) That the right of a suit in respect of the deity‘s property is
in the Shebait;

(2) this right is a personal right of the Shebait which entitles

him to claim the privilege afforded by the Limitation Act;
and

(3) the Shebait can sue in his own name and the deity need
not figure as a plaintiff in the suit, though the pleadings
must show that the Shebait is suing as such.‖189

338. A suit by a shebait on behalf of an idol binds the idol. For this reason, the

question of who can sue on behalf of an idol is a question of substantive law.

Vesting any stranger with the right to institute proceedings on behalf of the idol

and bind it would leave the idol and its properties at the mercy of numerous

individuals claiming to be ‗next friend‘. Therefore, the interests of the idol are

protected by restricting and scrutinising actions brought on behalf of the idol. For
189 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at pages 257-258

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this reason, ordinarily, only a lawful shebait can sue on behalf of the idol. When a

lawful shebait sues on behalf of the deity, the question whether the deity is a party

to the proceedings is merely a matter of procedure. As long as the suit is filed in

the capacity of a shebait, it is implicit that such a suit is on behalf of and for the

benefit of the idol.

A suit by a worshipper or person interested

339. There may arise a situation where a shebait has been derelict in the

performance of duties, either by not taking any action or by being complicit in the

wrongful alienation of the endowed property. In such a situation, where a suit is

instituted for the recovery of the deity‘s property, the action is against both the

shebait and the person possessing or claiming the property in a manner hostile to

the deity. The remedy for an action against mismanagement simpliciter by a

shebait can be found in Section 92 of the Civil Procedure Code 1908. However,

where an action against a stranger to the trust is contemplated, the remedy is not

a suit under Section 92 of the Civil Procedure Code 1908 but a suit in general law.

340. In Vemareddi Ramaraghava Reddy v Konduru Seshu Reddy222, the

plaintiffs accused the defendants, who were the managers of the temple and its

properties, of mismanagement. Subsequently, a compromise decree was

executed between the defendants and the Hindu Religious Endowments Board

which inter alia declared the temple properties as the personal property of the

defendants. The plaintiffs sought a declaration under Section 42 of the Specific

Relief Act 1963 that the provision of the compromise decree stating that the
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temple properties were the absolute personal properties of the defendant was not

binding on the temple. The defendants resisted this contention on the ground that

the plaintiffs had no legal interest in the temple or temple property and were mere

worshippers whose suit could not bind the temple. Justice V Ramaswami,

speaking for a two judge Bench of this Court held:

―13. … As a matter of law the only person who can represent

the deity or who can bring a suit on behalf of the deity is the
Shebait, and although a deity is a judicial person capable of
holding property, it is only in an ideal sense that the property
is so held. The possession and management of the
property with the right to sue in respect thereof are, in the
normal course, vested in the Shebait but where, however,
the Shebait is negligent or where the Shebait himself is
the guilty party against whom the deity needs relief it is
open to the worshippers or other persons interested in
the religious endowment to file suits for the protection of
the trust properties. It is open, in such a case, to the deity to
file a suit through some person as next friend for recovery of
possession of the property improperly alienated or for other
relief. Such a next friend may be a person who is
worshipper a of the deity or as a prospective Shebait is
legally interested in the endowment. In a case where the
Shebait has denied the right of the deity to the dedicated
properties, it is obviously desirable that the deity should file
the suit through a disinterested next friend, nominated by the
court…‖
(Emphasis supplied)

222
1966 Supp SCR 270
341. A necessary adjunct of managing of the temple properties is the right to

sue for recovery of the said properties. Ordinarily a shebait alone will be entitled

to bring a suit on behalf of the idol. In addition to being convenient and providing

immediate recourse for the idol, it also provides a valuable check against

strangers instituting suits, the outcomes of which may adversely impact the idol

without the knowledge of the idol or the shebait. But there may be cases where

the conduct of a shebait is in question. In certain cases, where the shebait itself is

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negligent or sets up a claim hostile to the idol, it is open for a worshipper or a next

friend interested in protecting the properties of the idol to file a suit to remedy the

situation. In the above case, by entering into the compromise decree declaring

the temple properties as personal properties of the defendant shebaits, the

defendants set up a title contrary to the title of the idol itself. This Court held that

it was hence permissible for the plaintiffs, who were worshippers, to maintain a

suit invalidating the compromise decree.

342. However, in Vemareddi Reddy, the suit was not instituted on behalf of

the deity. The suit was instituted in a personal capacity by the worshipper seeking

a declaration that the property in question was debutter property. In this context,

the court held:

―11. … If a shebait has improperly alienated trust property a

suit can be brought by any person interested for a declaration
that such alienation is not binding upon the deity but no
decree for recovery of possession can be made in such a suit
unless the plaintiff in the suit has the present right to the
possession. Worshippers of a temple are in the position of
cestuui que trustent or beneficiaries in a spiritual sense. …
Since worshippers do not exercise the deity‘s power of
suing to protect its own interests, they are not entitled to
recover possession of the property improperly alienated
by the Shebait, but they can be granted a declaratory
decree that the alienation is not binding on the deity…‖
(Emphasis supplied)

The significance of the distinction between suing on behalf of the deity and the

institution of a suit in a personal capacity for the benefit of the deity will be

adverted to shortly.

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343. In Bishwanath v Sri Thakur Radha Ballabhji190 a next friend of the idol

challenged the alienation of its properties by the defendant shebait. One of the

defences taken by the shebait was that the next friend was not capable of

maintaining a suit on behalf of the deity. Justice Subba Rao, speaking for a three-

judge Bench of this Court affirmed the principle that ordinarily a shebait

possesses the exclusive right to sue on behalf of the idol:

―9. Three legal concepts are well settled: (1) An idol of a

Hindu temple is a juridical person; (2) when there is a Shebait,
ordinarily no person other than the Shebait can represent the
idol; and (3) worshippers of an idol are its beneficiaries,
though only in a spiritual sense. It has also been held that
persons who go in only for the purpose of devotion have,
according to Hindu law and religion, a greater and deeper
interest in temples than mere servants who serve there for
some pecuniary advantage…‖

The learned judge then evaluated when persons other than a shebait may be

entitled to maintain a suit on behalf of the deity:

―10. The question is, can such a person represent the idol
when the Shebait acts adversely to its interest and fails
to take action to safeguard its interest. On principle we
do not see any justification for denying such a right to
the worshipper. An idol is in the position of a minor when
the person representing it leaves it in a lurch, a person
interested in the worship of the idol can certainly be
clothed with an ad hoc power of representation to protect
its interest. It is a pragmatic, yet a legal solution to a
difficult situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for recovery, in
most of the cases it will be an indirect approval of the
dereliction of the Shebait‘s duty, for more often than not he
will not admit his default and take steps to recover the
property, apart from other technical pleas that may be open to
the transferee in a suit. Should it be held that a worshipper
can file only a suit for the removal of the Shebait and for
the appointment of another in order to enable him to take
steps to recover the property, such a procedure will be
rather prolonged and a complicated one and the interest
of the idol may irreparably suffer. That is why decisions

190 (1967) 2 SCR 618

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have permitted a worshipper in such circumstances to

represent the idol and to recover the property for the idol.
It has been held in a number of decisions that worshippers
may file a suit praying for possession of a property on behalf
of an endowment…‖
(Emphasis supplied)

344. The decision reiterates the holding in Vemareddi Reddy that where a

shebait refuses to act for the benefit of the idol, or where the shebait‘s

actions are prejudicial to the interest of the idol, an alternative method must

be provided for protecting the idol‘s interests. In such cases, a next friend

interested in the protection of the endowed properties is vested with the

right to institute a suit. Where an action prejudicial to the interests of the

idol is taken by the shebait, it is unlikely that the shebait will institute a suit

challenging its own actions. Therefore, it becomes necessary to confer on a

next friend the right to bring an action in law against the shebait and the

stranger who threatens the idol‘s interests.

345. It is important to note that unlike in Vemareddi Reddy, this Court in

Bishwanath permitted worshippers to sue on behalf of the idol. The suit in

Bishwanath was not instituted by a worshipper in their personal capacity,

but rather as a representative of the idol to the exclusion of the shebait. The

next friend stepped into the shoes of the shebait for the limited purpose of

the

litigation.

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346. The position in law with respect to when a worshipper may institute

proceedings is settled. A worshipper can institute a suit to protect the

interests of the deity against a stranger where a shebait is negligent in its

duties or takes actions that are hostile to the deity. The question whether

the remedy available to the worshipper is a suit in a personal capacity or a

suit on behalf of the idol (as next friend) is one which must be answered.

The suit in Vemareddi Reddy was a suit filed by worshippers in their

personal capacity and the court had no occasion to determine whether a

suit by a next friend on behalf of the idol itself would be maintainable.

However, given the express observations that a worshipper cannot

exercise the deity‘s right to sue, this matter must be considered.

347. In this regard, Dr Dhavan brought to our notice the separate opinion of

Justice Pal in Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila

Thakur191, as a member of a Division Bench of the Calcutta High Court. The case

arose from a rather unique factual background. A suit was instituted by Anupama,

who was not the shebait but the daughter of the then shebait. Anupama sought to

stay the sale of certain property on the ground that the property was absolute

debutter property. Anupama‘s suit was subsequently dismissed and fresh

proceedings were instituted by the shebaits proper. Justice

Nasim Ali and Justice Pal both held that Anupama was not a shebait and thus the
dismissal of her suit was irrelevant for the purposes of deciding the fresh suit.

However, Justice Pal further observed:

191 AIR 1942 Cal 99

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―Persons having individual rights under such endowments

can bring suits to enforce such individual rights by an ordinary
suit in their own name without being obliged to bring a
suit in the name of the idol. This right reserved to the
worshippers sufficiently safeguards the interest of the
worshippers or other persons interested in the debutter. At the
same time it obviates the risk of jeopardising the interests
of the idol by allowing it to be affected by the
intermeddling of persons whose fitness has never been
enquired into and adjudicated upon.‖
(Emphasis supplied)

Justice Pal opines that even in situations where the shebait acts contrary to the

interests of the idol, a worshipper cannot sue on behalf of the idol, but only in a

personal capacity. This stems from the concern that persons whose fitness or

bona fides has not been enquired into or adjudicated upon by the courts may be

able to adversely bind the idol and its properties. In this view, the worshipper does

not sue on behalf of the deity, but may, at the very highest, obtain a declaratory

decree challenging the shebait‘s actions as not binding on the deity.

348. Where a shebait acts prejudicially to the deity‘s interests, there thus

exist two views on the remedies available to the interested worshipper. The

position taken by this Court in Bishwanath is that a worshipper can sue as a next

friend on behalf of the deity. As next friend, the worshipper directly exercises the

deity‘s right to sue. The alternative view taken by Justice Pal in Tarit Bhushan

Rai and as observed by this Court in Vemareddi Reddy is that a worshipper can

file a suit in a personal capacity to protect the deity‘s interests but cannot sue

directly on behalf of the deity although the suit may be for the benefit of the deity.

In this view, the deity is not bound by the suit of the worshippers unless the

remedy provided is in rem in nature. The matter raises two questions: First, is a
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suit filed by a worshipper in a personal capacity a sufficient and expedient method

to protect the interests of the deity? Second, does allowing a next friend to sue on

behalf of the deity without establishing the bona fide intentions and qualifications

of the next friend put the deity‘s interest at risk?

349. A suit by a worshipper in their personal capacity may be an appropriate

remedy in certain cases. For example, where a shebait denies worshippers

access to the idol, a suit by the worshipper in a personal capacity to grant access

to the idol may constitute a suitable remedy against the shebait. A further benefit

of confining the suits of worshippers to suits filed in a personal capacity is that in

cases concerning the recovery of property, a suit by a worshipper in a personal

capacity does not raise the question as to whom the possession of the land would

be given. However, where a suit is filed by a next friend on behalf of the deity

itself, a problem arises: in a suit for the recovery of property on behalf of the idol,

the court cannot deliver possession of the property to the next friend. The next

friend is merely a temporary representative of the idol for the limited purposes of

the individual litigation. Where a worshipper can only sue in their personal

capacity, the question of the delivery of possession does not arise.

350. A suit by a worshipper in their personal capacity cannot however canvas

the range of threats the idol may face at the hands of a negligent shebait and it

may be necessary for the court to permit the next friend to sue on behalf of the

idol itself to adequately protect the interests of the idol. For example, where a

shebait fails to file a suit for possession on behalf of a deity, a suit by a worshipper

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in their personal capacity is inadequate. Rather, what is required is a suit by a

next friend on behalf of the idol for the recovery of possession of the property. It is

true that possession will not be delivered to the next friend. However, the court

can craft any number of reliefs, including the framing of a scheme upon an

application by the Advocate General or two persons under Section 92 of the Civil

Procedure Code 1908225, to ensure that the property is returned to the idol. Where

the inaction or mala fide action of the shebait has already been established, such

a scheme may be the appropriate remedy, however this will necessarily depend

on the facts and circumstances of every case.

351. In view of these observations, it is apparent that where the interests of

the idol need to be protected, merely permitting interested worshippers to sue in

their personal capacity does not afford the deity sufficient protections in law. In

certain situations, a next friend must be permitted to sue on behalf of the idol –

directly exercising the deity‘s right to sue. The question of relief is fundamentally

225 92. Public charities.—(1) In the case of any alleged breach of any express or constructive trust created for
public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for
the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust
and having obtained the [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil
Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the
local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a
decree—
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession
of any trust property in his possession to the person entitled to the possession of such property;] (d) directing
accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any
particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged; ( g)
settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
contextual and must be framed by the court in light of the parties before it and the

circumstances of each case.

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352. This, however, brings us to the second question whether allowing a next

friend to sue on behalf of the idol puts the idol at risk. The idol and its properties

must be protected against the threat of a wayward ‗next friend‘. Where the

shebait acts in a mala fide manner, any person claiming to be a ‗next friend‘ may

sue. Such a person may in truth have intentions hostile to the deity and sue under

false provenance. Even a well-intentioned worshipper may sue as a next friend

and purely due to financial constraints or negligence lose the suit and adversely

bind the deity. A solution offered by Justice Pal in Tarit Bhushan Rai, and urged

by Dr Dhavan in the present proceedings, is that only court appointed next friends

may sue on behalf of the idol. No doubt this would satisfy the court that the next

friend is bona fide and can satisfactorily represent the deity.

353. It is true that unless the fitness of the next friend is tested in some

manner, an individual whose bona fides has not been determined may represent

and bind the idol to its detriment. However, it would be unnecessarily

burdensome to require every next friend to first be appointed by a court or for a

court to find a disinterested person to represent the deity. The deity‘s interests

would be sufficiently protected if, in cases where the bona fides of the next friend

are contested by another party, the court substantively examines whether the next

friend is fit to represent the idol. In an appropriate case, the court can do so of its

own accord where it considers it necessary to protect the interest of the deity. In

the absence of any objection, and where a court sees no deficiencies in the

actions of the next friend, there is no reason why a worshipper should not have

the right to sue on behalf of the deity where a shebait abandons his sacred and
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legal duties. Very often, worshippers are best placed to witness and take action

against any maladministration by a shebait. Therefore, where a shebait acts

adverse to the interests of the deity, a worshipper can, as next friend of the deity,

sue on behalf of the deity itself, provided that if the next friend‘s bona fides are

contested, the court must scrutinise the intentions and capabilities of the next

friend to adequately represent the deity. The court may do so of its own accord,

ex debito justitae.

The competence of the third plaintiff

354. In the present proceedings, both Mr S K Jain and Dr Dhavan urged that

the third plaintiff in Suit 5 was not fit to represent the first and the second plaintiffs.

Suit 5 was instituted in 1989 by Deoki Nandan Agarwal, a Vaishnavite.

The principal deity of Vaishnavas is Lord Vishnu. The Vaishnava sect worships

Lord Ram as one of the many avatars of Lord Vishnu. Deoki Nandan Agarwal

was appointed as next friend to the first and the second plaintiffs by an order of

the Civil Judge dated 1 July 1989.

355. A Mohd. Hashim filed a civil miscellaneous application 192 challenging the

appointment of Shri Deoki Nandan Agarwal. The relevant enquiry is whether any

substantial contest was raised to the bona fides of the third plaintiff to represent

the first and second plaintiff. The application stated:

―5. That the alleged plaintiffs 1 and 2, taking into account the
plaint averments to be gospel truth are not legal persons,
and, as such, suit being not for the leg 0000al person the
question of appointment of next friend could not be
192 CM Application No. 10(0) of 1989 in Regular Suit No. 236 of 1989.

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considered and without prima facie satisfying that the suit has
been filed by a legal person the question of appointment of
next friend could not be considered.
8. That for appointment of next friend there has to be an
averment that the alleged next friend has got no interest
adverse to the interest of the next person for whom he is
being appointed next friend and in the absence of any
averment regarding the same and without satisfying about
absence of adverse interest by the court the order
appointing plaintiff no. 3 as a next friend is bad and illegal.‖
(Emphasis supplied)

In para 5 of the application, the applicant questioned the juristic personality of the

first and the second plaintiff. It was averred that absent an established juristic

person, the question of appointing a next friend did not arise. Be that as it may,

the averment cannot be read as challenging the bona fides of the third plaintiff. In

para 8, the applicant stated that any application for appointment of a next friend

must be accompanied by a specific averment that there is no interest adverse to

the deity the person seeks to represent. Further, the applicant must satisfy the

court of the absence of an adverse interest. It is true that where the fitness of the

next friend is in dispute the court should scrutinise the bona fides of the next

friend. However, a bare allegation that is not substantiated with any evidence

does not constitute a contest to the bona fides of the next friend. Barring a stray

statement in para 8, the application did not substantiate or raise contest to the

bona fides of the third plaintiff.

356. Deoki Nandan Agarwal passed away on 8 April 2002 and an application

was made to the court to allow Dr T P Verma to be appointed as next friend of the

first and the second plaintiffs. By an order dated 25 April 2002, Dr T P Verma was

appointed as next friend by the Allahabad High Court. Subsequently, an

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application was filed to allow Triloki Nath Pande to replace Dr T P Verma as next

friend of the first and the second plaintiffs. This application was dismissed by the

Allahabad High Court. On appeal, by an order dated 8 February 2010, this Court

held:

―3. Mr. K.N. Bhat, learned senior counsel appearing on

behalf of the appellants very earnestly argues that instead of
Dr. Thakur Prsad Verma, Mr. Triloki Nath Pande be appointed
as next friend of appellant-plaintiff Nos. 1 & 2 under the
provisions of Order XXXII Rule 8 of Code of Civil Procedure
since Dr. Verma has serious health problems. He futher points
out that insofar as the costs already incurred are concerned,
the present next friend Dr. Verma shall give an undertaking to
the High Court indicating therein that he would be responsible
for the costs already incurred.
4. The other side has no objections for this arrangement. In
that view, it is not necessary for us to examine the correctness
or otherwise of the impugned order passed by the High Court.
If the aforesaid undertaking is given and the willingness of Mr.
Triloki Nath Pandey is indicated to the High Court, in that
case, Mr. Triloki Nath Pandey shall act as a next friend of
appellant-plaintiff Nos. 1 and 2 subject to the undertaking
given by Dr. Verma.‖

By the order of this Court, Triloki Nath Pande was permitted to act as next friend

of the first and the second plaintiffs. No objection was raised to the appointment

of Triloki Nath Pande in the proceedings before this Court. There was no reason

for this Court to examine the correctness of the order of the High Court

dismissing the application to permit TP Verma to retire from acting as the next

friend. The Allahabad High Court subsequently appointed Triloki Nath Pande as

next friend by an order dated 18 March 2010.

357. Where the fitness of the next friend is in dispute the court should

scrutinise the bona fides of the next friend. However, in the present case, this

enquiry is not necessary as the third plaintiff in Suit 5 has been appointed as next

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friend of the first and the second plaintiffs under the orders of the court. With the

appointment of Triloki Nath Pande, this Court has applied its mind to the question

and permitted Triloki Nath Pande to act as next friend of the first and the second

plaintiffs. Given the scrutiny that the appointment of the next friend has been

subject to in the present proceedings there is no merit in the argument that the

third plaintiff in Suit 5 is not fit to institute a suit as the next friend of the first and

the second plaintiffs.

Nirmohi Akhara and shebaiti rights

358. Where there exists an express deed of dedication identifying the shebait, the

position in law with respect to who can sue on behalf of an idol is as follows:

(i) The right to sue vests exclusively in the lawfully appointed shebait; however, (ii)

Where the shebait acts in a manner negligent or hostile to the interests of the idol

through express action or inaction, any person who is interested in the

endowment may institute a suit on behalf of the idol; and (iii) The exact nature of

the interest possessed by the next friend, and whether the next friend is bona fide

are matters of substantive law. If contested, it must be adjudicated upon by the

court.

The maintainability of Suit 5 hinges on the question whether Nirmohi Akhara were

shebaits, and whether they have acted in a manner prejudicial to the interests of

the idol. It is to this that issue we must now turn.

During the oral arguments before this court, a question was put to Mr Jain

whether by challenging the maintainability of the idol‘s suit, Nirmohi Akhara have

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set up a claim hostile to the interests of the idol. In response, Mr S K Jain

submitted to this Court a statement conditionally modifying the position of the

Nirmohi Akhara with respect to the maintainability of Suit 5 stating that the

Nirmohi Akhara would not press the issue of maintainability in suit 5 provided that

the plaintiffs in Suit 3 do not question the shebaiti rights of Nirmohi Akhara. It was

submitted that Nirmohi Akhara can independently maintain their suits as shebaits.

359. The statement by Nirmohi Akhara does not alter its claim that it is the

shebait of the idols of Lord Ram. It merely stipulates that, in the event that

the plaintiffs in Suit 5 choose to recognise Nirmohi Akhara as the shebait

of the idols, it will no longer challenge the maintainability of Suit 5. Such a

position is untenable in a court of law. Nirmohi Akhara has consistently

taken the stand that the Nirmohis are shebaits of the idols of Lord Ram. If

this Court finds that they are the shebait of the idols, they alone can sue

on behalf of the idols and Suit 5 instituted by a next friend would not be

maintainable, absent an adjudication by this Court that the Nirmohis have

acted contrary to the interests of the idol.

360. The present case does not concern an express deed of dedication

identifying a shebait. Rather, it is the submission of Nirmohi Akhara that by virtue

of their long-standing presence at the disputed site, and their exercise of certain

actions with respect to the idol, they are shebaits de facto. Further, the unique

nature of the present proceedings is that the suit instituted by the next friend,

thirty years after the suit by Nirmohi Akhara, is being adjudicated upon along-side

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with the suit filed by the alleged shebait, Nirmohi Akhara. The consequence of this

is that when the suit of the next friend was instituted in 1989, no determination

had yet been made that Nirmohi Akhara was a shebait.

361. The present proceedings are of a composite nature, hence the question of

the maintainability of Suit 5 must be answered in a staggered manner. The

first question is whether the Nirmohi Akahara are the de facto shebaits of

the idols of Lord Ram. If this is answered in the affirmative, the second

question that arises is whether Nirmohi Akhara have acted in a manner

prejudicial to the interest of the idol. If the Nirmohi Akhara are found to be

the de facto shebaits and have not acted prejudicially, Suit 5 is not

maintainable as it is the shebait that enjoys the exclusive right to sue on

behalf of the deity. Alternatively, if the Nirmohi Akhara are found not to be

de facto shebaits of the idols, or are found to have acted prejudicially with

respect to the idols, the suit by the next friend is maintainable.

With this, we turn to the question whether Nirmohi Akhara are shebaits de facto.

Rights of a de facto shebait to sue

362. The rights of a de facto shebait to institute suits on behalf of the deity can

be traced to two early decisions of the Privy Council: Mahant Ram

Charan Das v Naurangi Lal193 and Mahadeo Prasad Singh v Karia

Bharti194. In Mahant Ram Charan Das, the Mahant of a Paliganj mutt

executed a lease for 70 acres of the mutt‘s land and subsequently

193 AIR 1933 PC 75

194 AIR 1935 PC 44

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executed a sale deed subject to the lease. Upon his death, another

person claiming to be Mahant took possession and subsequently

surrendered all his rights by way of a registered sale deed to the plaintiff

who was the Mahant of another mutt (of which the Paliganj mutt was a

subordinate). The plaintiff instituted a suit claiming that there was no

necessity warranting the execution of the lease deed and the subsequent

sale deed. On the question of maintainability of the suit at the behest of

the plaintiff, the Privy Council, speaking through Lord Russell, held:

―…Their Lordships, however are not now concerned with

any question of title because both the Courts below have
found that the plaintiff is the person in actual possession of
the Paliganj mutt and as such entitled to maintain a suit to
recover property not for his own benefit but for the benefit of
the mutt.‖

363. In Mahadeo Prasad Singh, a village which formed part of the estate

annexed to a mutt was sold by the Mahant in 1914. Upon his death in

1916, the suit in question was instituted in 1926 challenging the alienation

by a person alleging to be the Mahant of the mutt. One objection to the

suit was that the respondent was not entitled to maintain the suit as he

was neither the chela of the previous Mahant, nor was he entitled to be

the Mahant in any other capacity.

Rejecting this contention, the Privy Council, speaking through Sir Shadi Lal held:

―There can be little doubt that Karia has been managing the
affairs of the institutions since 1904, and has since the death
of Rajbans been treated as its mahant by all the persons
interested therein. The property entered in the revenue
records in the name of Rajbans was, on his death, mutated to
Karia, and it is not suggested that there is any person who
disputes his title to the office of the mahant. In these

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circumstances their Lordships agree with the High Court that

Karia was entitled to recover for the benefit of the math the
property which belonged to the math and is now wrongly held
by the appellants. They are in no better position than
trespassers. As observed by this Board in 1933 PC 75 (1), a
person in actual possession of the math is entitled to maintain
a suit to recover property appertaining to it, not for his own
benefit, but for the benefit of the math.‖

The Privy Council noted the following: (i) Karia was recognised as a mahant by

the villagers; (ii) The revenue record reflected Karia‘s name; and (iii) It was not

suggested that there existed any dispute to his title to the office of the Mahant. It

is on the basis of these considerations that the Privy Council held that the rights

exercised by Karia were in the nature of a Mahant. The considerations outlined

above weighed with the Privy Council in its analysis of whether the rights

exercised were in the nature of those exercised by a Mahant.

364. Though both the decisions of the Privy Council adverted to above were in

the context of the right of a Mahant to bring an action on behalf of a mutt,

the position in law that a de facto Mahant is entitled to institute an action

on behalf of the mutt for its benefit has equally been applied to a de facto

shebait of an idol and its properties. In Panchkari Roy v Amode Lal

Burman195, Ramdas Mohunt, by virtue of a will, dedicated property to

certain idols and appointed his widow as the manager of the property till

the attainment of the age of majority of their daughter, at which point, she

would take over as a shebait. The widow sold the property as secular

property and the daughter, upon attaining majority, alleged that though the

property was secular, it devolved upon her by the virtue of the will. She

195 (1937) 41 CWN 1349

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sold the property to another party. The plaintiff, claiming to be the religious

preceptor of the debutter instituted a suit alleging that the idols were

handed over to him. The question before the court was whether the

plaintiff, who was not a member of the family or named in the will, could

validly institute a suit in a private endowment. The relevant question

before the Calcutta High Court was whether the plaintiff was a de facto

shebait. Justice BK Mukherjea (as he then was) held:

―The Judicial Committee in the case of Ram Chandra v.

Nourangi Lal (4) and again in Mahadeo Prosad Singh v. Karia
Bharti (5) laid down that a person in actual possession of the
Math is entitled to maintain a suit to recover property
appertaining to it not for his own benefit but for the benefit of
the Math…There may be and, in fact there is difference
between a Math and an idol but I do not see any reason why
a de facto shebait cannot be allowed to sue in case of family
endowment or private debottar….In order to make a person
a de facto shebait it is necessary, however, that he
should be in actual possession of the office and the
debottar estate….The de facto shebait would, in my
opinion, be one who exercises all the functions of a
shebait and is in possession of the debottar property
though the legal title may be lacking.‖
(Emphasis supplied)

365. Where a person claims to be a shebait despite the lack of a legal title, the

relevant enquiry before the Court is whether the person was in actual

possession of the debutter property and was exercising all the rights of a

shebait. The paramount interest in the protection of the debutter property

underlines the recognition of a de facto shebait. Where there is no de jure

shebait, the court will not countenance a situation where a bona fide

litigant who has exercised all the managerial rights over the debutter

property cannot be recognised in law as the protector of the property. It is

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only for the paramount interest of the institution that the right to sue is

conceded to persons acting as managers though lacking a legal title of a

manager.

366. This rationale was outlined by the Madras High Court in Subramania

Gurukkal v Abhinava Poornapriya A Srinivasa Rao Sahib196. The Court

of Wards dismissed the ‗archaka‘ in possession of lands belonging to a

temple on the ground that he had failed to render services and account for

certain charges made on the property. A suit was then filed by the Jagirdar

represented by his next friend the manager of the estate under the Court

of Wards as a trustee of the temple to recover possession. The order of

dismissal was passed after the death of the previous Jagirdar. It is after

the suit was instituted and before the decision in the suit that a notification

was passed making the new Jagirdar a ward under the Act. The question

arose as to whether the order of dismissal was validly passed. The Court

held that where the successor of the Jagirdar took no step to assume

control, the Court of Wards assumed the position of a de facto trustee.

Justice Wodsworth held:

―It is the duty of the Court to protect trust property from

misappropriation and diversion from the objects to which it was dedicated.
When trust property is without a legal guardian owing to defects in the
machinery for the appointment of a trustee or owing to the unwillingness of
the legal trustee to act, it would be a monstrous thing if any honest person
recognised as being in charge of the institution and actively controlling its
affairs in the interests of the trust should not be entitled, in the absence of
any one with a better title to take those actions which are necessary to
safeguard the objects of the trust.‖

196 AIR 1940 Mad 617

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367. This observation of the Madras High Court merits a closer look for two

reasons: First, the Court held that the right to bring an action to protect the

interest of the trust vests in a person who is ‗recognised as being in

charge of the institution and actively controlling its affairs‘. A single or stray

act of management does not entitle a person to be determined as a de

facto shebait. The relevance of this observation shall be considered

shortly. Second, the de facto shebait is vested with a right to bring an

action only in the absence of a person with a better title i.e. the de jure

shebait. With the above conditions, the Court held:

―…I am moreover inclined to think, quite apart from these

statutory provisions, that a de facto trustee of a Hindu temple
in actual management of that temple and acting bona fide in
the interests of the institution can validly pass an order
dismissing a temple servant or officer, provided that the
dismissal is for good grounds and that the procedure is one to
which no objection can be taken…There is moreover no
doubt as to the capacity of a de facto trustee in possession
and management of a temple to bring a suit for the recovery
of temple lands.‖

In this view, a person in actual management and acting bona fide for the interests

of the institution can bring a claim for the recovery of temple property as a de

facto shebait.

368. It is relevant here to advert in some detail to the Full Bench judgment of

the Madras High Court in Sankarnarayanan Iyer v Sri

Poovananathaswami Temple197. In this case, the de jure trustee

alienated the properties of a temple and his whereabouts were not known.

197 AIR 1949 Mad 721

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The succeeding trustee appointed under a compromise decree passed by

the court instituted a suit for the recovery of possession of the suit

property as the property of the temple. It was contended that independent

of the compromise decree, he was vested with the right to institute a suit

for the protection of the debutter properties as the de facto manager. Chief

Justice P V Rajamannar held:

―In the case of these endowments the so-called trustee is

not really a trustee, in the technical sense, in whom the
property is vested. He is really a manager (even in cases
where he also has a beneficial interest in the usufruct) and
the title always is vested in the idol or the institution. In either
case, the analogy is to that of an individual having a manager
to carry on the administration of his affairs and properties.
Viewed in this light, the position reduces itself to this. In some
cases, the manager has a rightful claim to the office of
manager, in other cases, his only claim is that he is in actual
possession of the office. ―De facto‖ means, ―by the title
of possession‖, in antithesis to ―de jure‖ i.e., ―by the
title of right‖. So long as the action is for the benefit of the
real owner, namely, the idol or the mutt, and the person
bringing the action is the only person who is in
management of the affairs of the idol or the mutt for the
time being, there is no reason why such person should not
be allowed to maintain the action on behalf of the idol or the
mutt.‖
(Emphasis supplied)

The above observations clarify that a person claiming to be de facto shebait must

be in exclusive possession of the debutter property and must be the only person

in management of the property.

369. In his separate opinion, Justice Viswanatha Sastri clarified the grounds of

challenge to the exercise of the power of management by a de facto

shebait in the following terms:

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―…If a de facto trustee is guilty of any breach of trust, he can

be removed like a de jure trustee. The law fixes him with the
responsibility for the proper administration of the trust and
also gives him the power to act on behalf of and in the
interests of the trust, until a lawful trustee emerges...A person
who asserts his own title to the property of a religious
endowment, who does not sue as a trustee or manager of the
endowment and who claims to recover the property for
himself and not for the trust, can never be allowed to sue as a
de facto trustee. He is entirely in the position of a trespasser
so far as the trust is concerned and cannot be considered to
be one who has taken upon himself the duties and obligations
of a trustee.‖198

Consistent with the jurisprudence on the rights of a shebait with respect to the

properties of an endowment, a de facto shebait is entrusted with the power and

the duty to carry out the purpose of the debutter in respect of the idol and its

properties. Though the shebait may have an interest in the usufruct of the

debutter property, the de facto shebait is not vested with an independent right of

title over the debutter property. Thus, where a de facto shebait raises an

independent claim to the debutter property to the idol, it assumes the position of a

trespasser and no action at its behest is maintainable. A claim raised by a shebait

adverse to the idol defeats the very purpose for which shebaits are vested with

the right to manage the idol and its properties.

370. It is of crucial importance to advert to the standard laid by the learned

judges in their separate opinions as to when a person may be deemed to

be a de facto shebait. Justice Viswanatha Sastri held:

―A fugitive or isolated act of a person with regard to the

property of a religious endowment would not make him a
198 Followed in Sapna Koteshwar Godat Goa Endowment (Trust) v Ramchandra Vasudeo Kittur AIR 1956
Bom 615

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de facto trustee. One swallow does not make a summer.

There must be a continuous course of conduct, the
length of the same depending on the facts and
circumstances of the case. The possession of the office or
the institution which is the object of the trust and the exercise
of the rights pertaining to the office, would be important
indicia of a de facto trusteeship.‖
(Emphasis supplied)

Similarly, Justice Raghava Rao held:

―I must confess, however, that I should have experienced

greater difficulty in the determination of the point in
controversy… whence comes the right of the de facto
manager to sue? There again, where and how are we to draw
a line between a manager de facto and a manager ad hoc
exercising isolated acts on particular occasion? I respectfully
agree with my learned brother Viswanatha Sastri, J. in his
picturesque observation that one swallow does not make a
summer; but the practical question still remains, how many
do?...how best to make sure that the person suing on behalf
of the institution does not enter into improper agreements or
compromises pre-decretal and post-decretal. Or walk away
with the monies representing the fruits of a particular decree
obtained on behalf of the institution? If that is not possible, is
it any consolation that at the hands of a de jure manager too
the institution may sustain sometimes a similar detriment?‖

371. All the above observations are of crucial importance. For, in

Sankarnarayanan Iyer and in the consistent jurisprudence of our courts

thereafter,233 it has been held that a stray act or intermittent acts of management

do not vest a person with the rights of a de facto shebait. Absent a deed of

dedication, the contention urged by Nirmohi Akhara that they have been in

management and charge of the disputed property is a claim in law, for the rights

of management as de facto shebaits. Both Justices Viswanatha Sastri and

Raghava Rao in Sankarnarayanan Iyer unequivocally held that isolated acts do

not vest a person with the rights of a de facto shebait. The conduct in question,

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must be of a continuous nature to show that the person has exercised all the

rights of a shebait consistently over a long period of time. The duration of time

233
Palaniappa Goundan v Nallappa Goundan AIR 1951 Mad 817; Mohideen Khan v Ganikhan AIR 1956 AP
19; Vankamamidi Balakrishnamurthi v Gogineni Sambayya AIR 1959 AP 186; The Commissioner for Hindu
Religious and Charitable Endowments, Madras v PR Jagnnatha Rao (1974) 87 LW 675; D
Ganesamuthuriar v The Idol Of Sri Sappanikaruppuswami AIR 1975 Mad 23; Lalji Dharamsey v
Bhagwandas Ranchghoddas 1981 Mah LJ 573; Shri Parshvanath Jain Temple v L.R.s of Prem Dass (2009)
1 RLW (Rev) 523
that would satisfy this requirement would, by necessity, be based on the facts and

circumstances of each case. Justice Raghava Rao endorsed the view of Justice

Viswanatha Sastri but went a step further to outline the practical difficulties in

laying down a standard against which the acts of a person claiming to be a de

facto shebait must be tested. The caution against adopting a low legal threshold

to confer on a person who merely has possession of the debutter property and

exercises intermittent managerial rights the position of a de facto trustee is well

founded.

372. A de facto shebait is vested with the right to manage the debutter

property and bring actions on behalf of the idol. A bona fide action for the benefit

of the idol binds it and its properties. As compared to a de jure shebait whose

rights can legally be traced to a deed of endowment, a de facto shebait is vested

with the right by mere possession and exercise of management rights. The

protection of the idol‘s properties is at the heart of this extraordinary conferral of

rights. If courts were to adopt a standard that is easily satisfied, large tracts of

debutter property may be left at the mercy of persons claiming to be in

possession of and managing such properties. It is the duty of the court in every

case to assess whether there has been not just exclusive possession but a

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continuous and uninterrupted exercise of all management rights which are

recognised by the beneficiaries of the trust property before conferring on a person

a right to which they have no legal title.

373. The duties that bind the exercise of powers of a de jure shebait apply

equally to a de facto shebait. Thus, no action can be brought by the de facto

shebait which is not in the beneficial interest of the idol or its properties. However,

the position of a de facto shebait and a de jure shebait is not the same in all

respects. In Sankaranarayanan Iyer, Justice Viswanatha Sastri held:

―It should be observed that the rights of a de facto trustee

are not in all respects identical with those of a de jure trustee.
A de jure trustee of a public religious endowment can be
removed only for misconduct and that only in a suit instituted
with the sanction prescribed by Section 92, Civil Procedure
Code or section 73 of Madras Act II of 1927. Where, however,
there is only a de facto shebait functioning as such, it is open
to persons interested in the trust to bring a suit under the
above provisions alleging a vacancy in the office and
requiring that it should be filled up by the appointment of a
trustee by the court. This would entail the removal of the de
facto trustee without any misconduct on his part…The de
facto trustee so long as he is functioning as such, has, from
the necessities of the situation, the right to bring suits on
behalf of and in the interests of the trust for evicting
trespassers claiming adversely to the trust. In this respect and
for this purpose, his rights and powers are the same as that of
a de jure trustee…‖

A de jure shebait can be removed from office only on the grounds of

mismanagement or claiming an interest adverse to the idol. However, no such

averment is required to remove a de facto shebait. A de jure shebait may, unless

the right of the de facto shebait has been perfected by adverse possession,

displace a de facto shebait from office and assume management of the idol at any

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point. Further, where there is a de facto shebait, a suit may be instituted under

Section 92 of the Civil Procedure Code 1908 requiring the court to fill up the

vacancy by the settling of a scheme. It is for the limited purpose of bringing an

action for the protection of the idol that the rights and powers of the de facto

shebait are the same as that of the de jure shebait.

374. The position of law that a person in continuous and exclusive possession of

the debutter property who exercises management rights in the interests of

the idol can bring actions on its behalf has found recognition by this Court

in Vikrama Das Mahant v Daulat Ram Asthana199. The appellant was

confirmed as a manager by virtue of a judgment of the Privy Council (on

the ground that the previous Mahant had transferred the property to him).

Prior to the date of the judgment of the Privy Council, another compromise

decree was entered into by the then Mahant with certain persons who

instituted a proceeding to have him removed. While some of the persons

who brought the actions took over as trustees under the terms of the

compromise, one of them took over as the Mahant and entered into

possession of the property. Three of the trustees and the successor of the

previous mahant filed a suit against the appellant. Both lower courts held

against the appellant. The High Court held that even if the compromise

decree is set aside, the plaintiffs are entitled to maintain the suit by virtue of

being de facto trustees whose possession has been clear and undisputed.

Both courts below recorded that pursuant to the compromise decree, the

plaintiffs and the appointed Mahant entered into possession and the

199 AIR 1956 SC 382

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properties were mutated in the name of the Mahant, and had been in

possession since then. Justice B Jagannadhadas, speaking for a

Constitution Bench of this Court held:

―33…the question before us is whether a person who has

been in de facto possession and management of the Asthan
and its properties from 1934 to 1941 (and thereafter up-
todate) claiming to be its trustee under the decree of a court,
valid or invalid has not sufficient interest to maintain
proceedings for the warding off of a cloud cast by the
defendant‘s actions against the interests of the Asthan…‖

―34..where public trusts are concerned, courts have a duty

to see that their interests and the interests for whose benefit they exist are
safeguarded…We consider that, in view of Ram Sarup Das‘s long
management and possession as Mahant and in view of the fact that he is
purporting to act on its behalf and for its interest, it is proper that he should be
allowed to continue to act on behalf of the trust until his title in investigated in
appropriate proceedings and that this Court should grant a decree in his
favour in these proceedings for the benefit of the trust.‖

The Court affirmed that it is only for the paramount interest of the institution that

the right of suit is conceded to persons acting as managers though lacking a

legal title of a manager. The long management and possession of the claimant in

the case vested in him a right to act on behalf of the deity to protect its interests.

375. In Sree Sree Kalimata Thakurani of Kalighat v Jibandhan

Mukherjee200, a suit was instituted under Section 92 of the Code of Civil

Procedure 1908 for the framing of a scheme for the proper management of the

seva-puja of the Sree Kali Mata Thakurani and her associated deities and for the

proper management of the vested properties. A scheme was framed and

subsequently challenged on the ground that the inclusion of de facto shebaits in

the management committee in the scheme was impermissible. Justice JR

200 AIR 1962 SC 1329

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Mudholkar, speaking for a Constitution Bench of this Court rejected this

contention and held:

―Whatever that may be, we cannot ignore the fact that the
present predecessors have been functioning as shebaits for a
very long period and their rights in that regard have not been
called into question ever before. In these circumstances we
cannot accept the contention of the learned counsel that they
should be completely excluded from the management of the
temple.‖

In crafting the relief, the Court was mindful of the long exercise of rights by those

acting as shebaits. The initial scheme framed by the High Court comprised

eighteen members on the managerial board of which twelve were shebaits. The

Court modified this to a Board of eleven members, with five shebaits and a

majority of Hindus who were not shebaits.

376. The protection of the trust property is of paramount importance. It is for this

reason that the right to institute proceedings is conceded to persons acting

as managers though lacking a legal title of a manager. A person claiming to

be a de facto shebait can never set up a claim adverse to that of the idol

and claim a proprietary interest in the debutter property. Where a person

claims to be the de facto shebait, the right is premised on the absence of a

person with a better title

i.e. a de jure manager. It must be shown that the de facto manager is in exclusive

possession of the trust property and exercises complete control over the right of

management of the properties without any hindrance from any quarters. The

person is, for all practical purposes, recognised as the person in charge of the

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trust properties. Recognition in public records as the manager would furnish

evidence of being recognised as a manager.

377. Significantly, a single or stray act of management does not vest a person

with the rights of a de facto shebait. The person must demonstrate long,

uninterrupted and exclusive possession and management of the property.

What period constitutes a sufficient amount is determined on a case to

case basis. The performance of religious worship as a pujari is not the

same as the exercise of the rights of management. A manager may appoint

one or several pujaris to conduct the necessary ceremonies. In the ultimate

analysis, the right of a person other than a de jure trustee to maintain a suit

for possession of trust properties cannot be decided in the abstract and

depends upon the facts of each case. The acts which form the basis of the

rights claimed as a shebait must be the same as exercised by a de jure

shebait. A de facto shebait is vested with the right to institute suits on behalf

of the deity and bind its estate provided this right is exercised in a bona fide

manner. For this reason, the court must carefully assess whether the acts

of management are exclusive, uninterrupted and continuous over a

sufficient period of time.

Duration of time

378. A final question that is relevant for our present enquiry is whether a de

facto shebait can claim a right to continue indefinitely in office. As seen

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earlier, a de jure shebait and a de facto shebait exercise similar rights in the

limited sense of acting for the benefit of the idol. Even absent an averment

of mismanagement by the shebait, a person may institute proceedings

under Section 92 of the Code of Civil Procedure 1908 against a de facto

shebait for the settling of a scheme. In this view, legal certainty and the

sustained interest of the deity would be served by circumscribing the claim

of a de facto shebait to continue, as a matter of right, in perpetuity.

379. In Gopal Krishnaji Ketkar v Mahomed Jaffar Mohamed Hussein201 the

plaintiffs instituted a suit praying for a declaration that the second plaintiff is the

guardian and 'vahivatdar' of the Darga. The defendant claimed to be its rightful

manager and Mutawalli. The plaintiffs‘ family were managers since 1817. Since

1902-03, the defendant was given the right to manage prayers during a certain

period every year in the temple and collect the offerings for his upkeep. Upon

alleged interference with the plaintiffs‘ right to manage and collect offerings, the

suit was instituted. The Court found that the plaintiffs and their family had been

managing from at least the year 1886. The Court held that as the right claimed by

the defendant was not that of a hereditary trustee, the right dies with him and the

only question was whether or not the plaintiffs were entitled to management and

the offerings. Justice Vivan Bose, speaking for a three-judge Bench of this Court

held:

―30. Now a ‗de facto manager or a trustee de son tort‘ has

certain rights. He can sue on behalf of the trust and for its
benefit to recover properties and moneys in the ordinary
course of management. It is however one thing to say that
because a person is a 'de facto' manager he is entitled to
recover a particular property or a particular sum of money

201 AIR 1954 SC 5

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which would otherwise be lost to the trust, for and on its

behalf and for its benefit, in the ordinary course of
management; it is quite another to say that he has the
right to continue in 'de facto' management indefinitely
without any vestige of title, which is what a declaration of
this kind would import. We hesitate to make any such
sweeping declaration… That being so, we think it
undesirable that things should be allowed to drift in this
uncertain way, no one knowing where the legal rights of
management lie or of what they consist; no one knowing
how the rights are to devolve or how the large charitable
offerings which are collected are to be distributed and
used.‖
(Emphasis supplied)
380. The Court drew a distinction between a claim in law to be vested with the

right to bring an action on behalf of the deities and a claim to continue

indefinitely as a de facto shebait which, for all purposes, would be equating

a de facto shebait with a de jure shebait and conferring upon the former a

legal title where it has always been absent. Legal certainty and the ultimate

protection of the trust properties underlie Section 92 of the Code of Civil

Procedure 1908. Under this provision, the Court is, upon an application by

the Advocate-General or two or more persons having an interest in the trust

and having obtained the leave of the court, vested with wide powers to

replace trustees and settle a scheme with respect to the trust property.

Keeping this in mind, the Court framed directions in accordance with the

above observations:

―32. We are told by the learned Solicitor-General that a suit

under Section 92, Civil P.C. is under contemplation. Without
in any way prejudicing matters which will arise there, we
make the following order. We direct-
1. That the present arrangement regarding the collection
and disposal of the offerings continue for a period of six
months from the date of this judgment.
2. That in the interval the offerings so collected, as well as
those already in deposit, he not handed over to the second
plaintiff except to the extent necessary for meeting the

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expenses. The legal representatives of the defendant have no

right at all to those offerings.
3. If such a suit is instituted within the said period, then the
said offerings and collections be disposed of in accordance
with such scheme as may then be framed, and in accordance
with such directions as may be given in that suit.
4. If no such suit is instituted within the said six months, then
the second plaintiff, as the person in 'de facto' management
of the Darga from 13-11-1938, the date of his adoption, till the
date of suit, 7-10-1946, will be entitled to receive the offerings
now lying in deposit in the Treasury for and on behalf of the
Darga and for its benefit and in future to collect all the
offerings all the year round for and on behalf of the Darga and
for its benefit until he is displaced by a person with better title
or authority derived from the Courts.‖
381. In Vikrama Das Mahant v Daulat Ram Asthana202, the compromise

decree on the basis of which the Mahant claimed a right and entered into

possession was not given effect. The decree of the trial court giving effect

to the compromise decree was set aside. Though the court sustained the

rights of the Mahant to continue as a de facto manager, the Court held:

―19. But this is only a stop gap expedient. We cannot shut

our eyes to the fact that we have before us a public trust of
which, on the facts now before us, an alleged intermeddler
claiming under a decree said to be void is in possession and
management. It may be, when proper proceedings are
instituted to determine the matter, that it will be found that he
is not without legal authority or it may be proper to invest him
with that authority if he has not already got it, or again it may
be better to have another person or body.
But those are not matters we need decide in these
proceedings. All we need do is to bring the present state of
facts to the notice of the Advocate General of Uttar Pradesh
and leave him to consider whether he should not, of his own
motion, institute proceedings under S. 92, Civil P. C., or take
other appropriate steps. Let a copy of this judgment be sent
to him.‖

382. The decisions of this Court in Gopal Krishnaji Ketkar and Vikrama Das

affirm that the interest of protecting the trust properties was the basis of

202 AIR 1956 SC 382

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conferring upon a de facto shebait the limited right of instituting bona fide

suits on behalf of the idol. Where there was no de jure shebait, the law

recognised the person managing the property as a shebait to the extent of

protecting the idol and its properties. However, this limited recognition did

not confer upon de facto shebaits the right to continue in perpetuity.

The Nirmohi Claim

383. Having adverted to the legal standard that must be satisfied for a court to

recognise a de facto shebait, the stage has been reached to adjudicate

upon the contention urged by the Nirmohi Akhara that it is the shebait of the

idols at the disputed site. Nirmohi Akhara is a Panchayati Math of the

Ramanandi sect of Bairagis which is a religious denomination. The customs

of Nirmohi Akhara purport to have been reduced to writing by a registered

deed dated 19 March 1949. It was contended that the disputed structure is

a temple building which has been in the possession of Nirmohi Akhara and

only the Hindus have been allowed to enter the temple and make offerings.

Nirmohi Akhara claims that it has been receiving the offerings through its

pujaris. The averments contained in the plaint as well as the reliefs which

have been claimed by Nirmohi Akhara indicate that the claim is to a right to

manage and have charge of the temple. Nirmohi Akhara contended that it

has been in possession of the property and has exercised management

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rights which amounts to a conferral on them of the status of a de facto

shebait.

384. At the outset, it was contended by Nirmohi Akhara that absent an

averment in the plaint in Suit 5 disputing its status as the shebait of the idols of

Lord Ram, their status as shebaits cannot be disputed. It was further contended

that no rival claim to the rights of the shebait have been set up in any suit.

Consequently, it was urged that it must be held that the Nirmohis are the shebaits

of the idols of Lord Ram. This contention cannot be accepted. If Nirmohi Akhara

were to be recognised as a de facto shebait, this would confer on it a substantive

right in law to bring actions on behalf of the idol to the exclusion of all other

persons. The actions of a shebait bind the idol and its properties. Absent an

express deed of dedication conferring shebaiti rights on Nirmohi Akhara, there is

a positive burden on it to demonstrate that it was in fact a shebait of the idols. For

this reason, the Nirmohi Akhara must establish, on the basis of oral and

documentary evidence, that they have exercised all the rights required to be

recognised as de facto shebaits.

385. Nirmohi Akhara denies the incident of 22/23 December 1949 during which

the idols were surreptitiously introduced into the inner sanctum of the

disputed structure. The claim that Nirmohi Akhara were in possession of the

inner courtyard on the basis of the evidence on record has already been

rejected. Nirmohi Akhara has failed to prove that at the material time, the

disputed structure was a temple which was in its possession and that no

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incident had taken place on 22/23 December 1949. Absent exclusive

possession of the inner courtyard, the claim that Nirmohi Akhara was

managing the inner courtyard as shebaits does not arise. It was in this

context that Justice Sudhir Agarwal held:

―2994. Now coming to Issue No. 3 (suit-3), it has to be kept

in mind that this suit is also confined to the premises within
the inner Courtyard and not the entire premises, i.e., the outer
and the inner Courtyard including the building. This is what is
stated by the counsel for Nirmohi Akhara in his statement
made on 17.5.1963 under Order X Rule 1 CPC.

4537. In these particular facts and circumstances and the

stand of Nirmohi Akhara, we have no option but to hold that
so far as the idols of Bhagwan Sri Ram installed in the
disputed structure i.e. within the inner courtyard is concerned,
the defendant Nirmohi Akhara cannot be said to be a Shebait
thereof.‖

386. In the written submissions of Nirmohi Akhara it has been contended that

the inner and outer courtyard form a composite whole and Suit 3 was only

filed with respect to the inner courtyard as only the inner courtyard was the

subject of the attachment proceedings. Nirmohi Akhara submits that the

attachment order made an arbitrary distinction between the inner and outer

courtyard and a finding with respect to the inner courtyard does not

undermine their claim to shebaitship of the entire premises. Even if this

argument is accepted, apart from the determination that Nirmohi Akahra

was not in possession of the inner courtyard, the independent question that

arises for our determination is whether Nirmohi Akhara consistently

exercised management rights over the idols in the outer courtyard to claim

a right in law as a de facto shebait of the idols of Lord Ram. To support their

contention, Nirmohi Akhara has relied on the oral evidence of witnesses in

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Suits 3 and 5 and also submitted certain additional documents to establish

its status as shebait.

387. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiff in

Suit 3 placed reliance on the witness statements of Mahant Bhaskar Das

(DW 3/1) and Raja Ram Pandey (DW 3/2) in Suit 3 to contend that it was

admitted that the Nirmohi Akhara had been exercising the rights of a

shebait since time immemorial. The oral evidence submitted by Nirmohi

Akhara has already been analysed in the course of this judgement. The

statements by their witnesses cannot be relied on to establish a cogent

account of the activities undertaken by Nirmohi Akhara at the disputed site.

Numerous witnesses admitted to not having read their own affidavits in lieu

of their Examination-in-Chief. The witnesses merely signed the relevant

documents without understanding the testimony contained therein. Further,

under cross-examination, a number of the witnesses expressly contradicted

their own statements. Several witnesses admitted to not having even

entered the disputed structure or rescinded earlier statements about their

visits to the disputed structure. In light of these observations, the oral

evidence relied upon by Nirmohi Akhara to establish their position as

shebaits cannot be accepted. However, for the sake of completeness, the

relevant extracts are examined below.

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388. Mahant Bhaskar Das (DW 3/1) was the Panch of Nirmohi Akhara since

1950 and was at the material time the Sarpanch. In his affidavit, it was

stated:

―81. Lord Ram Lalla is seated in the inner part even before
1934 and it had been in the possession of Nirmohi Akhara
continuously since 1934. The Muslims are not ignorant
about it. The Lord is seated there. His worship, royal offering
all is done on behalf of Nirmohi Akhara. On the day of the
attachment (viz 29.12.1949) of the inner part also it was in
possession of the Akhara. The ownership got ordained in
Nirmohi Akhara due to its being a religious trust.‖

It has been held, in the course of this judgement, on an analysis of the evidence

on record, that the idols were shifted under the central dome on in the intervening

night of 22/23 December 1950. The affidavit of this witness contains references

to the existence of Nirmohi Akhara in Ayodhya for 200 years and in the disputed

site. However, with regard to the exercise of shebaiti rights, the witness states:

―35. An annual contract was given to provide flowers, fruits,

batasha, etc., to the visitors of the eastern door temple of Sri
Ram Janambhomi. This was being done since ancient time
by the previous Mahants of Nirmohi Akhara and an
agreement was executed for it. The Brahmins were given the
contract to provide holy and fresh water from the Sita Koop to
the visitors/devotees. The tax was paid to the Mahant of the
Akhara. I have submitted all the available agreements with
me and many documents were plundered. The report was
lodged for the same.‖

In the cross examination of this witness by Mr Zafaryab Jilani, learned Senior

Counsel appearing for the Sunni Central Waqf Board, on 11 September 2003, the

witness replied:

―After the attachment the offerings which were made on the

idols places in the disputed building were not a part of any
contract by Niromohi Akhara. There is a mention of

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agreement about the contract in para 36 of my affidavit but I

do not remember how many such agreements were
submitted in this court on behalf of Nirmohi akhara. I do
not remember this time the names of those people who
were made to write the aforesaid so called agreement by
Nirmohi Akhara. I do not remember any name this time. I
have written in para 35 of my affidavit about submitting such
agreement in the court and Bindeshwari Dubey was one of
them who wrote the agreement and it is submitted in the them
who wrote the agreement and it is submitted in the court.
Which is the Document No. 39 C-1/39, I cannot tell it by
the number but the paper is titled.‖
(Emphasis supplied)

Though the witness makes reference to the presence of the Nirmohi Akhara in the

disputed site, the witness is unable to recall any of the documents mentioned to

have been submitted by him as evidence that the Nirmohi Akhara were exercising

management rights as the shebait. It is also important to note the answer of this

witness to the question put by Mr Jilani in the cross-examination dated 17

September 2003:

―Question: - Shall I take it that most of the part of this

affidavit was drafted by your advocate on the basis of his
knowledge? Answer:- It is wrong to say so. Some parts of
this affidavit is based on the knowledge of my advocate
but I do not remember which is that part and I will not be
able to tell it.‖
(Emphasis supplied)

The statements of DW 3/1 demonstrate that the witness was completely unaware

of the documents alleged to have been submitted by him as evidence. The

statements do not inspire confidence that the Nirmohi Akhara was exercising

management rights as the shebait.

389. Mr S K Jain then relied on the Examination-in-Chief by way of affidavit of

Raja Ram Pandey (DW 3/2) wherein it was stated:

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―14. …Before attachment of Garb Grah and till the taking

over of its charge by the receiver, I have seen the Priest and
the Assistant Priest of Nirmohi Akhara reciting Aarty, offering
deferential situations and giving ‗prasad‘ and ‗Charanamrit‘
and similarly I have seen upto February, 1982 the Priest, The
Assistant Priest the Panch of Nirmohi Akhara reciting Aarti
and performing ‗pooja‘ (worship) in ‗Chabootra Mandir and
―Chhati Poojan sthal‖.‖

As noted above, a pujari who conducts worship at a temple is not elevated to the

status of a shebait. A pujari gains no independent right despite having conducted

the ceremonies for a long period of time. Thus, the mere presence of pujaris does

not vest in them any right to be shebaits. The mere performance of the work of a

pujari does not in and of itself render a person a shebait. The statement of DW

3/2 establishes at the highest that some priests of Nirmohi Akhara were acting as

pujaris, but does not evidence the exercise of management rights for the

recognition of their status as a shebait.

390. Mr S K Jain also placed reliance on the testimony of Sri Acharya Mahant

Bansidhar Das alias Uriya Baba (DW 3/18) in Suit 3 to contend that Nirmohi

Akhara had been exercising management rights over the disputed site, including

the performance of pujas. DW 3/18 was an intermittent resident of Ramkot,

Ayodhya since 1930 and claimed to have lived at various temples and religious

shrines in close proximity to the disputed site. During his Examination-in-Chief,

DW 3/18 states:

―In 1930 I went for darshan of Shri Ram Janam Bhoomi

Mandir about which the suit is subjudice. At that time too
Bhagwan Ram Lalla was sitting there, I took darshan and also
took prasad, Aarti and charnamrit (sacred water). I had been
receiving prasad, Aarti and Charnamrit from the Priest
and Sadhus of Nirmohi Akhara living in the outer part i.e. in

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the Sant Niwas and store rooms situated in the north of main
eastern gate, called Hanumatha dwar, in the north of Ram
Chabutra.‖
(Emphasis supplied)

The witness stated that the priests in charge of the puja were priests of Nirmohi

Akhara. However, under cross-examination by learned Senior Counsel Mr Jilani,

the witness stated:

―…First of all, I have darshan of Ramchabutra, then

Ramlalla, Sita Kitchen and to Shankar Chabutra and from
there I used to come back. Sometime I used to offer prasada
while having darshan to Pujari (Priest) for offering in the inner
side. I do not remember the name of Priest. Priest kept on
changing. He himself said that Mahant of Hanumangarhi
Faizabad remained the Priest for long time. I do not
remember his name at present. On being reminded by
learned cross-examiner advocate, he said priest name
was Bhaskar Das.
…
Bhaskar Dasji remained the priest of the disputed site for
years but he was not a Mahant of Nirmohi Akhara ever.
He was a priest of Hanumangarhi, Faizabad. At present
he is neither a Mahant of Nirmohi Akhara nor a priest. He
is a member of the committee. I do not know how many
members are there in a committee.‖
(Emphasis supplied)

Despite the initial statement that it was Nirmohi Akhara that performed the puja at

the disputed site, the witness contradicts this statement under cross examination.

The witness stated that it was one Bhaskar Das who performed puja. Bhaskar

Das, according to the witness himself, was not associated with the Nirmohi

Akhara. The contradictory stance of the witness cannot be relied upon to establish

that Nirmohi Akhara were exercising management rights or even conducting the

performance of the puja at the disputed site prior to 1949.

391. The testimony of several of the witnesses relied upon by the plaintiffs in

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Suit 3 is riddled with inconsistencies and contradictions. The testimony of DW

3/18 is no different. During his testimony he stated:

―…The size of chabutra was about three-four feet, three feet

in width and at one and half feet high from the ground level.
This chabutra was just below the mid dome and is made
of cement and bricks. This chabutra was at distance of two
feet from western wall and was in the east…
…
It is not correct to say that 5-6 thousand Hindus have kept the
idols there on the night of 22/23.12.49, by making forceful
entry into. It is also not correct to say these people have
desecrated the Masjid. It is also not correct to say that
idols were kept there in the night because idols have
already been there. The point reported in the F.I.R. that idols
were kept on the night of 22.12.1949, was incorrect….‖
(Emphasis supplied)

During the course of this judgement a wealth of evidence has been produced by

the parties. There is no evidence to suggest that the Ramchabutra was ever

under the central dome of the mosque or that the idols existed inside the mosque

prior to December 1949. The witness further goes on to state:

―Telling a lie have been described as a sin in the

dharmshastras. But if by telling a lie, proves a savior then
there is no harm in telling a lie. Similarly there is no harm in
telling a lie by a person who is dying of hunger. If there is a
religious place and if somebody is acquiring it through
wrong means or forcibly occupying them, there is no
harm in telling a lie. If the religious place is taken away
forcibly by others by telling a lie then it is correct.‖
(Emphasis supplied)
In light of these statements by the witness no reliance can be placed on his

testimony.

392. Mr S K Jain has relied on the statement of Mr Jilani recorded on 22 April

2009 under Order X Rule 2 of the Code of Civil Procedure where it was stated:

―…the existence of Nirmohi Akhara from the second half of

nineteenth century onwards is also not disputed. It is however
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denied and disputed that Nirmohi Akhara was in existence

and special in Ayodhya in 16th century AD or in 1528 AD and
it also denied that any idols were there in the building of the
Babri Masjid up to 22nd December, 1949.‖

There is a distinction between the mere presence of Nirmohi Akhara at Ayodhya

or around the disputed site and the actual possession and management of the

disputed site. A mere presence within an area or possession of an area is not

sufficient to be vested with the powers of a shebait. Nothing in Mr Jilani‘s

statement demonstrates or concedes management or even possession by

Nirmohi Akhara.

393. Reliance was then placed on the oral testimony of plaintiff witnesses in Suit

5. Mr S K Jain urged that these witnesses have admitted that it was the priests of

the Nirmohi Akhara who were managing the idols at the disputed structure, before

and after attachment. It was submitted that as the witnesses in Suit 5 had

admitted the status of the Nirmohi Akhara as shebaits, no more evidence was

required to be placed before this Court to establish that the Nirmohis are the

shebaits. The relevant portions of these witness statements are as follows:

(i) Sri Mahant Paramhans Ram Charan Das (OPW-1)

―... Before attachment, Hindus had been going to Garba

Griha without any restrictions for having Darshan. Idols of
Lord Saligram, Hanumanji and Ramlalla were installed there.
People Belonging to the Nirmohi Akhara never obstructed any
Hindu from going to the Garba Griha. Members of the Nirmohi
Akhara used to manage Garbha Griha before attachment…‖

(ii) Deoki Nandan Agarwal (OPW-2)

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―…Bairagis of Nirmohi Akhara who used to worship at the

Ram Chabutra did not allow muslims to enter inside.
Therefore Namaz could never be performed in this place in
spite of efforts made constantly"

―…Worship of idols which existed earlier on Ram Chabutra

and of the idol installed after 1949 was got done only by the
two people of the Nirmohi Akhara till a quarrel arose with
Dharamdasji‖

(iii) Shri Ram Nath Panda @ Bansari Panda (OPW-5)

―In the Barred wall, there were two doors which used to
remain locked and those doors were opened and closed by
the Pujaris of the Nirmohi Akhara. The same very pujari used
to offer prayers and perform Arti at Ram Chandra and Sita
Rasoi Etc. We used to arrange Darshan of the Garbh Griha
for the pilgrims from the railing itself. A Donation box was also
kept there. On the main gates were the shops of Batasha and
flowed/garlands. One of those belong to Sehdev mali.‖

―…The key of the lock used to be in the possession of

people of Nirmohi Akhara and whose pujari would open the
lock, close the lock, and perform Arti puja and sounded bells
and bugles...‖

―…from 1949 to 1970, I used to go to Ram Janm Bhumi

Temple regularly. After the attachment of 1949, the receiver of
Garbh Girha-Babu Priya Dutt Ram became the chairman of
the Municipality Faizabad and at places like Ram Chabutra
Temple, Chhathi Puja Sthal, Bhandar Sthal and Shiv Darbar
Puja continued to be performed in the same way as before
and was performed by the same people who used to perform
it before...‖

The testimony of the plaintiff witnesses in Suit 5 have been selectively extracted

and do not bear out the conclusion that Nirmohi Akhara was a shebait. The

statements of OPW – 1 that Nirmohi Akhara managed the inner courtyard are not

supported by the evidence adduced, on which findings are recorded elsewhere in

this judgement. Similarly, the isolated statement by OPW – 5 that the Nirmohis

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possessed the key to the outer courtyard is not corroborated by any other

statements. If the Nirmohis possessed the key to the outer courtyard, every visitor

to the disputed site, whether Hindu or Muslim, would have required the

permission of the Nirmohis to enter. If true, such a state of affairs would have

surely been recorded by other witnesses in their testimony. The statement of

OPW – 2 once again merely indicates the presence of the Nirmohis in and around

the disputed site. It indicates a disagreement between the Nirmohis and Dharam

Das about the movement of the idols to the inner courtyard in 1949. This

statement undermines the claim of the Nirmohis as exclusive managers of the

deity as it evidences disagreement about the placement of the idols. The

continued disavowal of the events of 22/23 December by the Nirmohi Akhara

lends credence to this observation.

394. The oral testimony relied on by Nirmohi Akhara establishes, at best, that

they were present in and around the disputed site. However, the presence of the

Nirmohis around the disputed site does not amount to the exercise of

management rights which entitle them in law to the status of a de facto shebait.

The oral evidence in Suit 3 upon which reliance was placed is riddled with

inconsistencies and does not bear out the conclusion that Nirmohi Akhara

exercised management rights on behalf of the idols of Lord Ram. The oral

evidence of the three witnesses in Suit 5 has been selectively extracted and the

statements therein are not corroborated by the testimony of any other witness.

Independent of the oral testimonies, Nirmohi Akhara has placed reliance upon

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documentary evidence to establish its status as shebait of the idols at the

disputed site. These documents are as follows:

(i) The complaint dated 25 September 1866 by Meer Rajab Ali Khateeb

against Tulsidas regarding the ―Kothri‖ constructed by certain bairagis

inside the compound of the mosque;

(ii) Exhibit 30 – Suit 1: The appeal dated 13 December 1877 by Mohd.

Asghar against Mahant Khem Das with respect to the order permitting

the construction of a new gate on the northern side;

(iii) Exhibit 7 – Suit 5: Gazetteer of the Province of Oudh (1877-78);

(iv) Exhibit 24 – Suit 1: The plaint dated 8 November 1882 in the suit

instituted by Syed Mohd. Asghar against Mahant Raghubar Das

seeking rent for the use of the Chabutra;

(v) Exhibit 28 – Suit 1: The complaint dated 27 June 1884 by Mahant

Raghubar Das seeking spot inspection in view of the work being

carried out by Syed Mohd. Asghar for painting the mosque;

(vi) Exhibit A-22 – Suit 1: Suit dated 19 January 1885 filed by Mahant

Raghubar Das seeking permission for the construction of a temple on

the site of the Ramchabutra;

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(vii) Exhibit 8 – Suit 3: Copy of agreement dated 11 June 1900 permitting

Jhingoo (son of Gaya) to provide drinking water to the pilgrims visiting

Ram Janmabhumi site at Ayodhya;

(viii) H R Nevill‘s ―The Gazetteer of the United Provinces of Agra and

Oudh‖ (1905) stating that the Nirmohi Akhara sect formerly held the

Janmasthan temple in Ramkot, the remains of which still belong to

them;

(ix) Exhibit 9 – Suit 3: Copy of agreement dated 13 October 1942

regarding the Theka Shop of Janmabhumi Ram Kot Ayodhya executed

by Narottam Das in favour of Gopal (son of Babu);

(x) Exhibit 10 – Suit 3: Agreement dated 29 October 1945 executed in

respect of a shop by Mahant Raghunath Das;

(xi) Exhibit 49 – Suit 4: Mutation entry in favour of the Mahant Raghunath

Das; and

(xii) Statement by DW – 10 by Umesh Chandra Pandey.

It was further contended that while the Supurdaginama, by which the Receiver

took possession does not record from whom possession was taken, the

document indicates the presence of the Nirmohi Akhara in the outer courtyard.

Lastly, it was urged that after the interim order was passed in the Section 145

proceedings, the seva-puja continued ―as before‖ and was conducted by the

priests of the Nirmohi Akhara.

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395. Nirmohi Akhara urged that the presence of numerous Bairagis of the

Nirmohi Akhara at the disputed site evidences the exercise of management

rights. To support this, Nirmohi Akhara relied on the following:

(i) Edward Thornton (1854, Gazetteer of the territories under the

Government of East India Company) refers to the presence of about 500

Bairagis;

(ii) Letter dated 29 November 1949: Kripal Singh, the then Superintendent of

Police at Faizabad addressed a letter to K K Nayar, the Deputy

Commissioner mentioning that ―several thousand Hindus, Bairagis and

Sadhus‖ are to participate in the performance of the proposed Kirtan;

(iii) Letter dated 16 December 1949: K K Nayar (the Deputy Commissioner

and District Magistrate, Faizabad) addressed a communication to Govind

Narayan stating that ―some time this year probably in October or

November some grave-mounds were partially destroyed apparently by

Bairagis who very keenly resent Muslim associations with this shrine‖; and

(iv) Reference is also made to the presence of the Bairagis in the report of

Waqf Inspector dated 23 December 1949 marked as Exhibit A-64 in Suit 1.

The evidence relied on by the Nirmohi Akhara in this regard, evidences at best the

presence of the Bairagis of the Nirmohi Akhara at the disputed site. No other

credible documents or evidence was produced to show that these Bairagis in fact

exercised the rights of management of a shebait.

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396. The complaint of 25 September 1866 filed by Meer Rajab Ali Khateeb

states that it is filed against one ‗Tulsidas‘. Nirmohi Akhara sought to rely

on oral evidence to prove that Tulsidas was in fact a Mahant of the

Nirmohis and that it was Nirmohi Akhara who constructed the ―Kothri‖. It

has already been held that the oral evidence relied on by the Nimohis to

substantiate their claim is not reliable. The document itself does not prove

that Tulsidas was a Mahant of the Nirmohis nor that the construction was

carried out by the Nirmohis. It is not corroborated by any other

documentary evidence ordinarily associated with such a construction at the

time and does not evidence the exercise of rights as a shebait.

397. Exhibits 8, 9 and 10 in Suit 3 establish that the Nirmohis were providing

various services to the pilgrims visiting the disputed structure. However, all

three exhibits pertain to the grant of permission to provide these services

outside the disputed structure. At its highest, these exhibits show that the

Nirmohis were present in and around the disputed structure and assisted

the pilgrims. It does not however evidence any management over the idols

or the disputed site itself.

398. Significant reliance was placed on the role of Mahant Rahubar Das as a

Mahant of the Nirmohi Akhara. Reliance in this regard was placed on Exhibits 24

(suit dated 8 November 1882 filed for the collection of rent), Exhibit 28 (complaint

dated 27 June 1884 seeking plot inspection) and Exhibit A-22 (1885 suit filed for

the construction of a temple on the Ramchabutra) in Suit 1 adverted to above. It

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was contended that Mahant Raghubar Das filed the above suits as a Mahant of

the Nirmohi Akhara. On this basis, it was contended that the management and

charge of the deity was taken care of by the Nirmohi Akhara. A closer analysis

reveals the numerous contradictions in the stand of the Nirmohi Akhara with

respect to Mahant Raghubar Das. In the Suit of 1885, Mahant Raghubar Das

claimed to be the ―Mahant, Janmasthan, Ayodhya‖. In the written submissions

filed by Nirmohi Akhara it was stated that Mahant Raghubar Das filed the Suit of

1885 in a personal capacity:

―…the said suit [1885] was filed by Mahant Raghbar Das in

his personal capacity without even mentioning the name
of Nirmohi Akhara and in any case the subject property in
the said suit – (Chabutra in Outer Courtyard) was different
from the suit-property (Inner Courtyard) which is the subject
matter of OOS No. 3‖.
(Emphasis supplied)

However, in the same written submissions, while speaking of the report of the

Waqf Inspector dated 23 December 1949, it was said:

―He mentions the name of Mahant Raghubar Das along

with others who invited the Muslims for talks. Mahant
Raghubar
Das is the Mahant of Nirmohi Akhara.‖
(Emphasis supplied)

In the replication, Nirmohi Akhara disavowed any awareness about the suit by

Mahant Raghubar Das:

―…The plaintiffs are not aware of the said suit, if any, filed by
any person known as Mahant Raghubar Das as Mahant of
Janma Asthan.‖
In the Written Statement filed on the behalf of Nirmohi Akhara in Suit 4, it was

stated:

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―…The answering defendants are not aware of any suit

having been filed by any person known as Mahant Raghubar
Dass styling himself to be the Mahant of Janam Asthan…‖

In the suit of 1885, Mahant Raghubar Das claimed to be the Mahant,

Janmasthan, Ayodhya. In the oral hearings before this Court as well as the

hearings before the High Court, Nirmohi Akhara claimed that Mahant Raghubar

Das was a Mahant of Nirmohi Akhara. Justice Sudhir Agarwal makes the

following observation:

―964. What we have already noticed, it has not been

disputed by Nirmohi Akhara that in 1885 Raghubar Das was
Mahant of
Nirmohi Akhara…‖

It is clear from the above extracts that Nirmohi Akhara sought to espouse Mahant

Raghubar Das as a Mahant of the Nirmohi Akhara to establish that they have

acted as shebaits since the 1800s. Yet they distance themselves from the Mahant

when dealing with the question of res judicata. Nirmohi Akhara even stated that it

was unaware of the Suit of 1885. The inconsistent stance of the Nirmohi Akhara

with respect to Mahant Raghubar Das leads to an adverse inference against

them.

399. The documentary evidence which has been produced by Nirmohi

Akhara does not show that it was managing the property in question. Apart from

the documentary evidence analysed above which does not further the case of

Nirmohi Akhara, no evidence has been produced to show the exercise of

management rights by Nirmohi Akhara. Stray acts do not constitute sufficient

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evidence to establish continuous, exclusive and uninterrupted exercise by

Nirmohi Akhara of the rights and duties of a de facto shebait. No document that

evidences repairs, construction, appointment of pujaris, or other activities has

been produced before this Court. Significantly, apart from a stray reference in the

account of the travellers, no document of Nirmohi Akhara has been put on record

to show the exercise of management rights. The customs of Nirmohi Akhara were

reduced to writing by a registered deed only on 19 March 1949.

400. When a question was put to Mr S K Jain to produce the original

documents that establish the claim of the Nirmohi Akhara as shebaits, it was

contended that an alleged dacoity had led to loss of the documents necessary to

substantiate the claim. To substantiate this claim, it was contended that an FIR

was filed on 18 February 1982 against Dharam Das. However, in the written

submission submitted by the Nirmohis, it is stated that though Dharam Das

remained in jail for two months, the case was subsequently quashed on the basis

of a compromise. No documents have been adduced to substantiate this claim

other than a reliance on the statement of a single witness – Raja

Ramachandracharya (DW 3/20). This argument is an attempt to gloss over the

glaring absence of any substantial proof of the exercise of management rights by

the Nirmohis to confer on them the status of a shebait. The position of a shebait in

law is of crucial significance. The shebait is the human ministrant and custodian of

the idol and acts as its authorised representative. The shebait is vested with the

right to bring an action on behalf of the deity and bind it. In this view, the claim of

Nirmohi Akhara that it is a de facto shebait on the basis of the oral and

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documentary evidence on record has been analysed and it has been found that

the claim has not ripened into shebait rights.

401. A claim of rights as a de facto shebait must be substantiated with proof

that person is in exclusive possession of the trust property and exercises

complete control over the right of management of the properties without any let or

hindrance from any quarters whatsoever. For all practical purposes, this person is

recognised as the person in charge of the trust properties. Though it cannot and

has not been denied in the present proceedings that Nirmohi Akhara existed at

the disputed site, the claim of Nirmohi Akhara, taken at the highest is that of an

intermittent exercise of certain management rights. Their rights were peripheral,

usually involving the assistance of pilgrims, and were constantly contested. As

held above, a stray or intermittent exercise of management rights does not confer

upon a claimant the position in law of a de facto shebait. It cannot be said that the

acts of Nirmohi Akhara satisfy the legal standard of management and charge that

is exclusive, uninterrupted and continuous over a sufficient period of time. Despite

their undisputed presence at the disputed site, for the reasons outlined above,

Nirmohi Akhara is not a shebait.

402. In light of the holding that Nirmohi Akhara is not the shebait for the idols

of Lord Ram at the disputed site, it was open for an interested worshipper to sue

on behalf of the deity. There existed no recognised shebait in law. In such a

situation the idol‘s independent right to sue was exercised through its next friend,

a worshipper interested in the protection of the idol and its interests. Suit 5 is

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maintainable as a suit instituted by a next friend on behalf of the first and second

plaintiffs in the absence of a lawfully recognised shebait.

403. Mr Jaideep Gupta, learned Senior Counsel appearing on behalf of

Mahant Shri Dharam Das, respondent 12 in the present appeal urged that he is

the successor (Chela) of Late Baba Abhiram Das, who was the priest of the Ram

Janmabhumi temple before 1949. The present respondent is the Mahant of Akhil

Bhartiya Sri Panch Nirvani Ani Akhara and Mahanth of Hanuman Garhi,

Ayodhya. Late Baba Abhiram Das was defendant no 13/1 in Suit 4 and Defendant

no 14 in Suit 5 and upon his death, the present respondent was substituted as

defendant in the said suits. It is submitted that Late Baba Abhiram Das was the

pujari of Janmasthan temple and played an instrumental role in its affairs. It has

been submitted that prior to 1949, Late Baba Abhiram Das conducted the puja

and even after the idol was placed inside the disputed structure, he continued to

perform puja till 5 January 1950 when the receiver took charge. It is submitted

that the present defendant being the chela of Late Baba Abhiram Das, is entitled

to perform sewa-puja and bhog at the disputed structure as the shebait. In

support of the above, the following submissions have been urged:

(i) The idol of Lord Ram was placed at the disputed structure in the

intervening night of 22-23 December 1949. The deity after being placed

inside the three domed structure (pratishthit) and the Ramjanmabhumi

(swayambhu) are juristic persons and have the right and title over the

disputed structure;

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(ii) Nirmohi Akhara cannot claim to be the shebait with respect to the juristic

entities after having denied their existence in their pleadings.

When the incident took place in the intervening night of 22-23

December, no individual of Nirmohi Akhara was present there and no

members of the Nirmohi Akhara were named as accused persons in the

proceedings;

(iii) The respondent is the only person who can claim to be a shebait of the

shrine of Ram Lalla and Janmabhumi. Respondent‘s Guru Late Baba

Abhiram Das along with several others resolved to restore the sacred

Janmasthan to its pristine glory by taking a collective vow on the

occasion of Vijayadashmi at a public meeting held on 2 October 1949,

pursuant to which the surrounding area around the disputed site was

sanitised. This was followed by Navahana pathas, Japa and Sankirthan

both inside and outside the three domed structure;

(iv) As long there exists a shebait, the management of the deity cannot be

handed over to the next friend or the Ram Janmabhumi Nyas in Suit 5.

Both Suit 1 and Suit 5 have been filed in a personal capacity and no

management or possession can be handed over to them; and

(v) The fact that Late Baba Abhiram Das was the pujari/priest/shebait of the

deity has been established from the following facts and records:

(a) One Shri Bhaskar Das (DW 3/1) in Suit 4, who was the Sarpanch of

Nirmohi Akhara in his cross examination stated and confirmed that

Late Baba Abhiram Das was the priest of the disputed structure and

not the priest of Nirmohi Akhara;

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(b) In his statement dated 29 December 1950 given before the

Magistrate under Section 145, Late Baba Abhiram Das had

categorically stated that he and his other co-pujaris had been

maintaining and managing the Janmabhumi temple and the

surrounding land since 1934;

(c) The respondent stated before the High Court that various religious

functions at the disputed premises were organised under the

supervision of his Guru, Late Baba Abhiram Das and electricity

connections were also in his name;

(d) Mohd Hashim, who is plaintiff no 7 in Suit 4 and defendant no 3 in

Suit 5 stated in his cross examination that the idols were placed

inside the mosque by Abhiram Das, Dharam Das and others;

(e) On 30 April 1992, Late Deoki Nandan Agarwal, plaintiff 3 in Suit 5

had stated that the idol was placed inside the central dome on 22-23

December 1949 by Shri Paramhans Ramchandra and Late Baba

Abhiram Das along with others;

(f) Late Baba Abhiram Das has been named as accused no 1 in both

the FIR dated 23 December 1949 and chargesheet dated 1

February 1950 for placing the idol inside the disputed structure. Late

Baba Abhiram Das has submitted that he is the pujari of the Ram

Janmabhumi in the bail bond dated 1 February 1950;

(g) The District Magistrate, Faizabad in his report dated 23 December

1949 observed that the crowd was controlled by permitting two or

three persons including Abhiram Das, Ram Shukal Das and

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Sudarshan Das to offer bhog to the idol inside the disputed structure;

and

(h) By an application dated 21 December 1962, Late Baba Abhiram Das

applied for permission before the receiver for organising the program

of 62 jayanti Samaroh. It is stated that the said Samaroh had been

held each year and organised by Late Baba Abhiram Das and

Janam Bhoomi Sewa Samiti.

404. The dispute inter se between Nirmohi Akhara and Nirvani Ani Akhara is

not the subject matter of the existing dispute. Nirvani Ani Akhara has not pursued

any proceedings of its own to establish its claim. The claim that Nirmohi Akhara

was a shebait has been rejected. In discussing Nirmohi Akhara‘s claim, it has

been held that to establish a claim as a shebait or even as a de facto shebait, one

needs to rely on evidence that indicates more than a mere act of performing the

functions of a priest. A pujari is merely a servant or appointee of a shebait and

gains no independent right as a shebait despite having conducted ceremonies

over a period of time. All the evidence relied upon to support the claim of Late

Baba Abhiram Das is restricted to his having performed puja at the disputed

premises and does not confer any shebaiti rights.

N. 7 Limitation in Suit 5

405. The cause of action leading to the institution of Suit 5 has been pleaded in

paragraphs 14, 18, 30 and 36 of the plaint which read as follows:

―14.That the plaintiff Deities and their devotees are

extremely unhappy with the prolonged delay in the hearing
and disposal of the said suits and the deteriorating

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management of the affairs of the Temple, particularly the way

the money offered by the worshippers, who come in great
numbers, is being misappropriated by the Pujaries and other
Temple staff, and the receiver has not controlled this evil.
Further devotees of the Plaintiff Deities are desirous of having
a new Temple constructed, befitting their pristine glory, after
removing the old structure at Sri Rama Janam Bhumi,
Ayodhya.
..
.

18. That although the aforesaid suits have been pending trial
for such an extraordinarily long number of years, they are
inadequate and cannot result in a settlement of the dispute
which led to their institution or the problems arising there
from, in as much as neither the presiding Deity of Bhagwan
Sri Rama Virajman nor the Asthan Sri Rama Janma Bhumi,
the Plaintiffs Nos. 1 and 2 herein, who are both juridical
persons, were impleaded therein, although they have a
distinct personality of their own, separate from their
worshippers and sewaks, and some of the actual parties
thereto, who are worshippers, are to some extent involved in
seeking to gratify their personal interests to be served by
obtaining a control of the worship of the Plaintiff Deities.
Moreover, the events which have occurred during these four
decades, and many material facts and points of law require to
be pleaded from the view point of the Plaintiff Deities, for a
just determination of the dispute relating to Sri Rama Janma
Bhumi, Ayodhya, and the land and buildings and other things
appurtenant thereto. The Plaintiffs have been accordingly
advised to file a fresh suit of their own.

30. That the Hindu Public and the devotees of the Plaintiff
Deities, who had dreamed of establishing Ram-Rajya in Free
India, that is, the rule of Dharma and righteousness, of which
Maryada Purushottam Sri Ramchandra Ji Maharaj was the
epitome, have been keenly desirous of restoring his
Janamsthan to its pristine glory, as a first step towards that
national aspiration given to us by Mahatma Gandhi. For
achieving this, they are publicly agitating for the construction
of a grand Temple in the Nagar style. Plans and a model of
the proposed Temple have already been prepared by the
same family of architects who built the Somnath Temple. The
active movement is planned to commence from September
30, 1989, and foundation stone of the new Temple building, it
has been declared, shall be laid on November, 9, 1989.
…

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36. That the cause of action for this suit has been
accruing from day to day, particularly since recently
when the plans of Temple reconstruction are being
sought to be obstructed by violent action from the side
of certain Muslim Communalists.‖ (Emphasis supplied)

The above averments of the cause of action comprise of the following

components:

(i) A prolonged delay in the hearing and disposal of Suits 1, 3 and 4;

(ii) Deterioration in the management of the affairs of the temple and the failure

of the receiver to control it;

(iii) Offerings by the worshippers have been misappropriated by the pujaris and

temple staff;

(iv) The first and second plaintiffs who are claimed to be juridical persons were

not impleaded as parties to the earlier suits;

(v) The worshippers and sevaks and some of the parties to the suits are

seeking to pursue their own personal interest in seeking control of the

worship of the deities;

(vi) Hindu devotees have been agitating for the construction of a new temple

for which plans have been prepared; and

(vii) Plans for reconstruction are sought to be obstructed ―by violent action

from the side of certain Muslim communalists‖.

406. Suit 5 was instituted for ―a declaration that the entire premises of Sri

Ram Janmabhumi at Ayodhya, as described and delineated in Annexures I, II and

III belong to the plaintiff deities‖ and for a consequential perpetual injunction.

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Annexures I, II and III were described in paragraph 2 of the plaint as ―two site

plans of the building premises and of the adjacent area known as Sri Rama

Janma Bhumi, prepared by Shiv Shankar Lal Pleader … along with his Report

dated 25.05.1950.‖ After the decision of the Constitution Bench of this Court in Dr

M Ismail Faruqui v Union of India203, the dispute has been circumscribed to the

area comprised in the inner and outer courtyards.

Suit 5 was instituted on 1 July 1989, on which date, the Limitation Act 1963 was in

force.

Submissions

407. Setting up the bar of limitation, Dr Rajeev Dhavan, learned Senior

Counsel appearing on behalf of the Sunni Central Waqf Board, canvassed the

following propositions:

(a) Section 10 of the Limitation Act 1963 has no application to the present case

since the provision applies to a suit against a person in whom property has

become vested in trust for any specific purpose, or his legal representative

or assigns (other than for lawful consideration) for following in his or their

hands the property or the proceeds thereof or for an account of the

property or proceeds;

(b) The suit could not have been instituted when the deity was being ―well

represented‖ through its shebait – the Nirmohi Akhara - and no removal of

the shebait has been sought on account of a grievance bearing on

misconduct;
203 (1994) 6 SCC 360

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(c) The defence that a deity is a perpetual minor will not aid the plaintiffs in Suit

5 for the reason that the deity was represented by the shebait and a suit

can be instituted by a worshipper as a next friend only when the shebait is

found to have acted adversely to the interest of the deity. However, no

allegation has been made by the next friend against the shebait;

(d) It is a settled principle of law that limitation runs against a perpetual minor;

and

(e) Suit 5 is not maintainable as there was no cause of action for instituting it.

Even otherwise, whichever provisions of the Limitation Act are applicable,

Suit 5 would be barred by limitation.

On 23 September 2019, Dr Dhavan during the course of his oral submissions

responded to the submissions of Mr Parasaran on limitation. While doing so, Dr

Dhavan proceeded on the basis that Mr Parasaran had sought the benefit of

Section 10 of the Limitation Act in submitting that the suit was within limitation.

Subsequently, on 24 September 2019, in the fair tradition of the Bar of this Court,

Dr Dhavan clarified that he was informed by Mr Parasaran that he was not taking

the benefit of Section 10 and did not make a submission seeking the benefit of

that provision. Dr Dhavan hence urged that the submissions under Section 10 be

read as submissions urged by him.

408. Mr Parasaran urged that the contentions of Dr Dhavan, appearing for

the Defendant-Sunni Waqf Board proceed on the footing that the plaintiffs are not

juridical persons and that the Mahant of Nirmohi Akhara is a valid shebait both for

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the first and second plaintiffs. On the issue of limitation, the three judges of the

Allahabad High Court unanimously held in favour of the plaintiffs (except that

Justice S U Khan did not determine as to whether the second plaintiff is a juristic

person). Hence, Mr Parasaran urged that the issue of limitation would depend

upon the findings of this Court on issues 1,6 and 8 239 in Suit 5 and in the event

that these issues are held in favour of the plaintiffs in Suit 5, the attack of the

defendants to the suit being barred by limitation would, in consequence, fail.

409. At the outset, it is necessary to record that in the course of the present

judgment, it has been held that:

(i) Nirmohi Akhara has failed to establish its case of being a shebait;

(ii) As a consequence of (i), the challenge to the maintainability of Suit 5 on the

ground that it was only Nirmohi Akhara as shebait which could have

instituted the Suit must fail; and

(iii) The first plaintiff in Suit 5 is a juristic person.

239
Issue 1: Whether the first and second plaintiffs are juridical persons.
Issue 6: Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their next friend and is the suit not competent
on this account.
Issue 8: Is the defendant Nirmohi Akhara the ―Shebait‖ of Bhagwan Sri Ram installed in the disputed structure.

The issue of limitation would hence be addressed on the basis of the above

position.

Essentially, the Sunni Central Waqf Board in the course of its submissions sought

to assail the findings of the High Court on limitation on three broad grounds:

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(i) Suit 5 could not have been instituted when the deity was being ‗well

represented‘ through its shebait against whose conduct there is no

grievance and since the removal of the shebait has not been sought;

(ii) The defence of the deity being a perpetual minor cannot aid the plaintiffs

since the deity was being represented by a shebait and a suit by a next

friend can lie only when the shebait has acted adverse to the interest of the

deity; and

(iii) It is a settled principle of law that a deity is not a minor for the purpose of

limitation.

The first and the second grounds noted above now stand concluded by the finding

that Nirmohi Akhara was not a shebait and hence Suit 5 has been held to be

maintainable at the behest of the next friend.

The issue which then falls for consideration at this stage, is as to whether Suit 5

can be held to be within limitation on the ground that a deity is a perpetual minor.

This submission of Mr C S Vaidyanathan, learned Senior Counsel appearing on

behalf of the plaintiff in Suit 5, it is again necessary to reiterate would govern the

first plaintiff alone which has been held to be a juristic person.

A statute of repose

410. The law of limitation is embodied in a statute which is based on the principles

of repose or peace, as held by this Court in Pundlik Jalam Patil v Executive

Engineer, Jalgoan Medium Project204:

204 (2008) 17 SCC 448

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―An unlimited and perpetual threat of limitation creates

insecurity and uncertainty; some kind of limitation is essential for public
order...‖
The applicability of the provisions of the Limitation Act cannot be extended by

analogy or implication. The right to claim in perpetuity is embodied in a specific

situation which is referred to in Section 10 and the ambit of the provision cannot

be extended as a matter of implication. Before 1929, Section 10 was cast in the

following terms:

―10. Suits against trustees and their representatives. –

Notwithstanding anything contained in the foregoing provions
of this Act, no suit against a person in whom property has
become vested in trust for any specific purpose, or against his
legal representatives or assigns (not being assigns for
valuable consideration), for the purpose of following in his or
their hands such property, or the proceeds thereof or for an
account of such property or proceeds, shall be barred by any
length of time.‖

Section 10 was amended by the introduction of an explanation by the Indian

Limitation (Amendment) Act 1929 (1 of 1929). As amended, the provision came

to read as follows:

―10. Suits against express trustees and their

representatives. – Notwithstanding anything hereinbefore
contained, no suit against a person in whom property has
become vested in trust for any specific purpose, or against his
legal representatives or assigns (not being assigns for
valuable consideration), for the purpose of following in his or
their hands such property, or the proceeds thereof or for an
account of such property or proceeds, shall be barred by any
length of time.
Explanation : For the purposes of this section any property
comprised in Hindu, Mohammedan, Buddhist religious or
charitable endowment shall be deemed to be property vested
in trust for a specific purpose, and the manager of any such
property shall be deemed to be the trustee thereof.‖

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411. The background of the amendment is understood by considering the decision

of the Privy Council in Vidya Varuthi Thirtha v Balusami Ayyar205. Dealing with

the alienation of property, the decision had wider implications which led to the

statutory changes which were brought in 1929. The Privy Council held:

―From the above review of the general law relating to Hindu

and Mahommedan pious institutions it
would prima facie follow that an alienation by a manager
or superior by whatever name called cannot be treated as
the act of a ―trustee‖ to whom property has been
―conveyed in trust‖ and who by virtue thereof has the
capacity vested in him which is possessed by a ―trustee‖
in the English law. Of course, a Hindu or a Mahommedan may
―convey in trust‖ a specific property to a particular individual
for a specific and definite purpose, and place himself expressly
under the English law when the person to whom the legal
ownership is transferred would become a trustee in the specific
sense of
the term.‖ (Emphasis supplied)

Alienation by a manager was held not to constitute an act of a trustee to whom

property had been conveyed in trust in the same sense in which the expression

was used in English law. As a result of the amendment of 1929, a deeming fiction

was introduced consequent upon which property comprised in a Hindu,

Mohammedan or Buddhist religious or charitable endowments was deemed to be

property vested in trust for a specific purpose.

Section 10 applies to suits filed against:

(i) A person in whom property has become vested in trust for a specific

purpose; and

(ii) Legal representatives and assigns of such a trustee.

However, it does not cover assigns of such a trustee for valuable consideration.

205 AIR 1922 PC 123

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The suit can be filed for the purpose of:

(i) Following in the hands of the trustee such property;

(ii) Following in the hands of the trustee the proceeds of such property; and

(iii) For an account of such property or proceeds.

Significant in the opening words of Section 10 is the absence of the words ―by or

against‖. The Section, in other words, does not apply to suits by a trustee against

third parties. (See also in this context, the decision of a Division Bench of the

Madras High Court in Palaniandi Gramani Manickammal v V Murugappa

Gramani206). Section 10 has no application to Suit 5.

The argument of perpetual minority

412. Mr C S Vaidyanathan, learned Senior Counsel, urged that the idol is a

minor by legal fiction. Hence, no adverse title can be acquired against a

minor. Dr Rajeev Dhavan, learned Senior Counsel, submitted that although

a deity is treated as a minor because of its inability to sue except through a

human agency, a deity is not a minor for the purposes of limitation. He

submitted that the dictum in Bishwanath v Sri Thakur Radha Ballabhji207

that a deity is a perpetual minor was not made in the context of limitation.

413. In Bishwanath, this Court was tasked with deciding whether a worshipper

can maintain a suit for eviction on behalf of the idol if the shebait acts

206 AIR 1935 Mad 483

207 (1967) 2 SCR 618

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adversely to the interest of the idol. Chief Justice Subba Rao, speaking for

a two-judge bench of this Court, held thus:

―10. The question is, can such a person represent the idol
when the Shebait acts adversely to its interest and fails to
take action to safeguard its interest. On principle we do not
see any justification for denying such a right to the
worshipper. An idol is in the position of a minor when the
person representing it leaves it in a lurch, a person
interested in the worship of the idol can certainly be
clothed with an ad hoc power of representation to protect
its interest. It is a pragmatic, yet a legal solution to a
difficult situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for recovery, in
most of the cases it will be an indirect approval of the
dereliction of the Shebait's duty, for more often than not he
will not admit his default and take steps to recover the
property, apart from other technical pleas that may be open to
the transferee in a suit. Should it be held that a worshipper
can file only a suit for the removal of a Shebait and for the
appointment of another in order to enable him to take steps to
recover the property, such a procedure will be rather a
prolonged and a complicated one and the interest of the idol
may irreparably suffer. That is why decisions have
permitted a worshipper in such circumstances to
represent the idol and to recover the property for the idol.
It has been held in a number of decisions that
worshippers may file a suit praying for possession of a
property on behalf of an endowment…‖
(Emphasis supplied)

414. The suit in that case was instituted by Shri Thakur Radha Ballabhji, the

deity represented by a next friend for possession of immoveable property and for

mesne profits. The case of the plaintiff was that the second defendant, who was

the Sarvarakar and manager, had alienated the property to the first defendant and

the sale not being for necessity or for the benefit of the idol was not binding on the

deity. Both the trial court and on appeal, the High Court held that the sale was not

for the benefit of the deity and the consideration was not adequate. But it was

urged that the suit for possession could only have been filed by the shebait and

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none else could represent the deity. It was in that context, that this Court held that

on principle there was no reason to deny to a worshipper a locus to institute a suit

challenging the alienation when the shebait had acted adversely to the interest of

the deity. The observation that the idol is in the position of a minor was not made

in the context of the provisions of the Limitation Act. The observation was in the

context of deciding whether a suit by a worshipper was maintainable when the

manager had dealt with the property adverse to the interest of the deity. The

dictum that the idol is in the position of a minor cannot be construed to mean that

the idol is exempt from the application of the Limitation Act 1963.

415. In B K Mukherjea‘s ―The Hindu Law of Religious and Charitable

Trust‖208, the position of law has been thus summarised:

―A Hindu Idol is sometimes spoken of as a perpetual infant,

but the analogy is not only incorrect but is positively
misleading. There is no warrant for such doctrine in the rules
of Hindu law and as was observed by Rankin, C.J. In
Surendra V. Sri Sri Bhubaneswari, it is an extravagant
doctrine contrary to the decision of the Judicial Committee in
such cases as Damodar Das Vs. Lakhan Das. It is true that
the deity like an infant suffers from legal disability and has got
to act through some agent and there is a similarity also
between the powers of the shebait of a deity and those of the
guardian of an infant. But the analogy really ends there. For
purposes of Limitation Act the idol does not enjoy any
privilege and regarding contractual rights also the
position of the idol is the same as that of any other
artificial person. The provisions of the Civil Procedure
Code relating to suits by minors or persons of unsound
mind do not in terms at least apply to an idol; and to
build up a law of procedure upon the fiction that the idol
is an infant would lead to manifestly undesirable and
anomalous consequences.‖209 (Emphasis supplied)

208 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn. Eastern Law House, (1983)
at pages 256-257
209 Ashim Kumar v. Narendra Nath 76 CWN 1016

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These are prescient words of a visionary judge. Over the years, Courts have

elucidated on the juristic character of the idol as a minor and the consequences

of this legal fiction.

416. In 1903-4, the Privy Council in Maharaja Jagadindra Nath Roy Bahadur v

Rani Hemanta Kumari Debi210 dealt with a case where the plaintiff, in his

capacity as the shebait of an idol, had instituted suits for proprietary rights

in certain property. The High Court held that the idol being a juridical person

capable of holding property, limitation started running against him from the

date of the transfer and hence the suit by the shebait was barred by

limitation.

The Privy Council concurred with the judges of the High Court that being a

juridical person, the idol was capable of holding property. However, limitation was

saved because when the cause of action arose, the shebait to whom the

possession and management of the dedicated property belonged, was a minor.

Hence, the Privy Council held that the right to institute a suit for the protection of

the property vested in the idol could be brought within three years of the

attainment of majority of the shebait. Sir Arthur Wilson observed:

―But assuming the religious dedication to have been of the

strictest character, it still remains that the possession and
management of the dedicated property belong to the sebait.
And this carries with it the right to bring whatever suits are
necessary for the protection of the property. Every such right
of suit is vested in the sebait, not in the idol. And in the
present case the right to sue accrued to the plaintiff when he
was under age. The case therefore falls within the clear
language of s. 7 of the Limitation Act, which says that, ―If a
person entitled to institute a suit... be, at the time from which

210 (1903-04) 31 IA 203

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the period of limitation is to be reckoned, a minor,‖ he may

institute the suit after coming of age within a time which in the
present case would be three years.‖
(Emphasis supplied)

The basis for holding that suit to be within limitation was not that the idol was not

subject to the law of limitation but that the shebait was a minor on the date of the

accrual of the course of action. The suit could be instituted within three years of

the shebait attaining majority.

417. In 1909-10 a judgment was rendered by the Privy Council in Mahant

Damodar Das v Adhikari Lakhan Das211 where there was a dispute between the

senior chela and junior chela of a Mutt with regard to succession after the Mahant

passed away. This was settled by an ikrarnama dated 3 November 1874. Under

the ikrarnama, a math at Bhadrak was allotted in perpetuity to the senior chela

and his successors, while a math at Bibisarai and the properties annexed to it

were allotted to the junior chela in the capacity of an

‗adhikari‘, subject to an annual payment of Rs. 15 towards the expenses of the

Bhadrak math. After the death of the senior chela, a suit was instituted by his

successor for possession of the math at Bibisarai. It was contended that the

property was dedicated to the worship and service of the plaintiff's idol and was

held by the junior chela in the capacity of an adhikari. The respondent set up

limitation as a defence claiming that neither the plaintiff nor his predecessors had

been in possession of the disputed property within twelve years prior to the

institution of the suit. The trial court held that the suit was not barred by limitation,

but the High Court reversed the decree on the ground that the respondent had

211 (1909-10) 37 IA 147

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held the disputed mutt adversely for more than twelve years. The Privy Council

rejected the plea of the senior chela that the cause of action arose on the death of

the senior chela and affirmed the ruling of the High Court that the suit was barred

by limitation, having been instituted within twelve years of the death of the senior

chela, but twenty seven years after the ikrarnama. Sir Arthur Wilson held thus:

―The learned Judges of the High Court have rightly held that
in point of law the property dealt with by the ekrarnama was
prior to its date to be regarded as vested not in the Mohant,
but in the legal entity, the idol, the Mohant being only his
representative and manager. And it follows from this that
the learned Judges were further right in holding that from
the date of the ekrarnama the possession of the junior
chela, by virtue of the terms of that ekrarnama, was
adverse to the right of the idol and of the senior chela, as
representing that idol, and that, therefore, the present suit
was barred by limitation.‖
(Emphasis supplied)
Though the above observations did not specifically deal with whether an idol

could be regarded as a perpetual minor, the Privy Council held in clear terms that

the plea of adverse possession as against the right of the idol was available and

that therefore the suit was barred by limitation.

418. In Chttar Mal v Panchu Lal212, a Division Bench of the Allahabad High Court

considered whether an idol suffers a disability of being a perpetual minor and

hence a suit by an idol at any period of time after the date of the transfer would be

saved from the bar of limitation under Section 7 of the Limitation Act. The

argument was premised on the following opinion put forth in the fifth edition of

Sastri's ―Hindu Law‖213:

―As regards limitation it should be considered whether section 7

of the Limitation Act is not applicable to a suit to set aside an
improper alienation by a sebait of the property belonging to a
212 AIR 1926 All 392
213 Chapter XIV, 5th edition at page 726.
250
AIR 1926 Mad 769

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Hindu god. As the god is incapable of managing his property he

should be deemed a perpetual minor for the purpose of
limitation.‖

The Division Bench, however, held:

―…With respect, it may be pointed out that in a transfer by a

minor the question of a proper or improper alienation would not
arise. Under the Contract Act a transfer by a minor would be void
and not only voidable: Mohori Bibee v. Dharmodas
Ghose [(1902) I.L.R., 30 Calc., 539.]. If the rule were enforced the
property of a god would not fetch any money in the market when
need arose to transfer it for the benefit of the temple where the
idol may be installed…We have clear authority, therefore, in
refusing to accept the plaintiff's argument.‖

In adopting this view, the Division Bench of the High Court relied on the decisions

of the Privy Council in Maharaja Jagadindra Nath and in Damodar Das.

419. The fiction of perpetual minority was adopted by a Division Bench of the

Madras High Court in Rama Reddy v Rangadasan250. In that case, the plaintiff

had instituted a suit in 1918 as the pujari and trustee of the suit temple to recover

possession of property granted to an ancestor of the plaintiff as manager of the

temple. The disputed property had been sold by defendant nos 1 and 2 (the father

and uncle of the plaintiff) to defendant no 3 in 1893. It was the contention of the

plaintiff that the property had been granted as service inam to their family for

rendering service as a pujari and the alienation was not valid. The District

Munsif dismissed the suit as barred by limitation and on appeal, the Subordinate

Judge reversed and remanded the suit. The District Munsif again dismissed the

suit and on appeal, the District Judge confirmed the decree. The lower appellate

court found that the plaintiff was the pujari or trustee of the suit property and held

that the suit property was attached to the temple. The plaintiff preferred a second

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appeal, which was heard by a Single Judge, who held that the suit was not barred

by limitation. In a Letters Patent Appeal preferred against the decree of the Single

Judge, the Division Bench was to determine whether the suit was barred by

Article 134 or 144 of the Limitation Act.

420. The High Court noted the decision in Vidya Varuthi Thirtha v Balusami

Ayyar214 where the Privy Council held that a permanent lease of mutt property

could not create any interest in the property to subsist beyond the life of the

grantor and consequently, Article 134 would not apply to a suit brought by the

successor of the grantor for the recovery of the property. The High Court held that

a trustee cannot convey a valid title to the transferee, hence Article 134 would not

apply. The High Court noted that the principle of adverse possession would apply

to cases where a person who could assert his title does not do so within the

period stipulated under Article 144 of the Limitation Act. With respect

to the property of an idol, Justice Devadoss held thus:

―The legal fiction is that an idol is a minor for all time and it has to be under
perpetual tutelage and that being so, it cannot be said that
the idol can ever acquire majority, and a person who
acquires title from a trustee of a temple cannot acquire any
title adverse to the idol, for the idol is an infant for all time
and the succeeding trustee could recover the property for
the idol for any time.‖

The High Court held that the manager cannot set up an adverse title to the

property of the idol. It was concluded that in consequence, the manager by his

act cannot allow a person who derives title from him to assert an adverse title.

214 AIR 1922 PC 123

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In Surendrakrishna Roy v Shree Shree Ishwar Bhubaneshwari Thakurani215,

a Division Bench of the Calcutta High Court held that when the property dedicated

to an idol has been held adversely to another and there is no fiduciary relationship

with the idol, limitation would run and be governed by Article 144 of the Act. Chief

Justice Rankin, on the issue of perpetual minority, held thus:

―21. The doctrine that an idol is a perpetual minor is, in

my judgment an extravagant doctrine contrary to the
decision of the Judicial Committee in such cases as
Damodar Das v. Lakhan Das[ (1910) 37 Cal 885 : 37 IA 5147
: 7 IC 240 (PC).] . It is open to shebaits or any person
interested in an endowment to bring a suit to recover the
idol's property for debuttar purposes…‖
(Emphasis supplied)

The decision of the High Court was affirmed by the Privy Council in Sri Sri Iswari

Bhubaneshwari Thakurani v Brojonath Dey.216

421. In The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak

Committee, Amritsar217, the Privy Council considered whether a mosque can be

considered a juristic person and can be subject to adverse possession. Sir

George Rankin observed:

―That there should be any supposed analogy between the

position in law of a building dedicated as a place of prayer for
Muslims and the individual deities of the Hindu religion is a
matter of some surprise to their Lordships. The question
whether a British Indian Court will recognise a mosque as
having a locus standi in judicio is a question of procedure. In
British India the Courts do not follow the Mahomedan law in
matters of procedure [cf. Jafri Begum v. Amir Muhammad
Khan [I.L.R. 7 All. 822 at pp. 841, 842 (1885).] , per
Mahmood, J.] any more than they apply the Mahomedan

215 AIR 1933 Cal 295

216 (1936-37) 64 IA 203

217 AIR 1940 PC 116

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criminal law of the ancient Mahomedan rules of evidence. At

the same time the procedure of the Courts in applying Hindu
or Mahomedan law has to be appropriate to the laws which
they apply. Thus the procedure in India takes account,
necessarily, of the polytheistic and other features of the Hindu
religion and recognises certain doctrines of Hindu law as
essential thereto, e.g., that an idol may be the owner of
property. The procedure of our Courts allows for a suit in
the name of an idol or deity though the right of suit is
really in the sebait [Jagadindranath v. Hemmta
Kumari [L.R. 31 I.A. 203 : s.c. 8 C.W.N. 609 (1605).] ]. Very
considerable difficulties attend these doctrines—in
particular as regards the distinction, if any, proper to be
made between the deity and the image [cf. Bhupati Nath v.
Ram Lal [I.L.R. 37 Cal. 128, 153: s.c. 14 C.W.N. 18
(1910).] , Golapchandra Sarkar, Sastri's ―Hindu Law,‖ 7th
Ed., pp. 865 et seq.]. But there has never been any doubt
that the property of a Hindu religious endowment—
including a thakurbari—is subject to the law of limitation
[Damodar Das v. Lakhan Das [L.R. 37 I.A. 147 : s.c. 14
C.W.N. 889 (1810).] and Sri Sri Iswari Bhubaneshwari
Thakurani v. Brojo Nath Dey [L.R. 64 I.A. 203 : s.c. 41
C.W.N. 968 (1937).] ]. From these considerations special to
Hindu law no general licence can be derived for the
invention of fictitious persons…‖
(Emphasis supplied)

It was concluded thus:

―The property now in question having been possessed by

Sikhs adversely to the waqf and to all interests thereunder for
more than 12 years, the right of the mutawali to possession
for the purposes of the waqf came to an end under Art. 144 of
the Limitation Act and the title derived under the dedication
from the settlor or wakif became extinct under sec. 28. The
property was no longer, for any of the purposes of British
Indian Courts, ―a property of God by the advantage of it
resulting to his creatures…‖

In a decision of a Division Bench of the Calcutta High Court in Tarit Bhushan Rai

v Sri Sri Iswar Sridhar Salagram Shila Thakur 218, Nasim Ali J noted the

similarities and points of distinction between the position of a minor and an idol in

Hindu Law:

218 AIR 1942 Cal 99

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―The points of similarity between a minor and a Hindu idol

are: (1) Both have the capacity of owning property. (2) Both
are incapable of managing their properties and protecting
their own interests. (3) The properties of both are managed
and protected by another human being. The manager of a
minor is his legal guardian and the manager of an idol is its
shebait. (4) The powers of their managers are similar. (5)
Both have got the right to sue. (6) The bar of S. 11 and Order
9, R. 9, Civil P.C., applies to both of them.

The points of difference between the two are: (1) A Hindu

idol is a juristic or artificial person but a minor is a
natural person. (2) A Hindu idol exists for its own interest as
well as for the interests of its worshippers but a minor does
not exist for the interests of anybody else. (3) The Contract
Act (Substantive law) has taken away the legal capacity of a
minor to contract but the legal capacity of a Hindu idol to
contract has not been affected by this Act or by any other
statute. (4) The Limitation Act (an adjective law) has
exempted a minor from the operation of the bar of
limitation but this protection has not been extended to a
Hindu idol.

From the above it is clear that there is some analogy

between a minor and a Hindu idol but the latter is neither
a minor nor a perpetual minor.‖
(Emphasis supplied)

Before the Orissa High Court in Radhakrishna Das v Radharamana Swami219, a

suit had been instituted by the next friend of the deity for a decree directing the

restoration of the plaintiff deity to its original place of consecration. The Division

Bench of the High Court held that an idol cannot be regarded a perpetual minor

for the purposes of limitation and rejected the contention of the plaintiff that the

deity‘s right to be located at its temple is a continuing right on account of the

incapacity of the deity to act on its behalf. The Division Bench held:

―…An idol is no doubt in the position of an infant as it can act

only through a sebayat or a manager. But no authority has
been cited to us for the proposition that he is to be regarded as

219 AIR 1949 Orissa 1

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a perpetual infant, so that transactions by or against him will

not by governed by the Limitation Act.

The doctrine that an idol is a perpetual minor is an extravagant

doctrine as it is open to the sebayat, or any person in an
endowment, to bring a suit to recover the idol‘s property for
devottar purposes. An idol, therefore, is as much subject to the
law of limitation as a natural person and cannot claim
exemption on the ground that he is a perpetual infant. Nor is a
Hindu deity to be regarded as a minor for all purposes. An idol
cannot, therefore, claim exemption from the law of limitation.‖

The legal fiction of a deity as a minor has been evolved to obviate the inability of

the deity to institute legal proceedings on its own. A human agent must institute

legal proceedings on behalf of the deity to overcome the disability. However, the

fiction has not been extended to exempt the deity from the applicability of the law

of limitation.

422. In the present case, it has been established that there was no de-facto or

de-jure shebait acting on behalf of the deity. Therefore, it is appropriate to refer to

judgements of this Court regarding the ―right of suit‖ as vested in the shebait

and the consequence of the absence of a shebait on the application of the

Limitation

Act to the adverse possession of debutter property. ―In Rai Sahib Dr

Gurdittamal Kapur v Mahant Amar Das Chela Mahant Ram Saran220, this

Court dealt with a case where a suit was filed in 1957 by the first respondent, who

was a newly appointed Mahant of Akhara Nirbansar of Sultanwind Gate, Amritsar.

The second respondent was removed as a Mahant in proceedings under Section

92 of the Civil Procedure Code and the first respondent was subsequently

appointed in his place. It was alleged that the alienation of property by the second

220 AIR 1965 SC 1966

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respondent was unauthorised as the transfer was not for legal necessity or for the

benefit of the estate. Moreover, it was contended that the fact that the appellant

was in possession of the land for more than twelve years made no difference and

since the land was trust property, a suit for its recovery could be brought within

twelve years from the date of death, resignation or removal of the manager of

such a property. A three judge Bench of this Court held that the suit filed by the

first respondent was liable to be dismissed since the appellant had been in

adverse possession for more than twelve years. Speaking for this Court, Justice J

R Mudholkar held that for the purposes of Section 144 of the Act, adverse

possession is to be computed from the ―effective possession‖ of the appellant as

a result of the sale:

―12…The law on the subject has been stated very clearly at

pp. 274 and 275 in Mukherjea's Hindu Law of Religious and
Charitable Trust, 2nd Edn. It is pointed out that in the case of
an execution sale of debutter property it is not the date of
death of the incumbent of the Mutt but the date of effective
possession as a result of the sale from which the
commencement of the adverse possession of the
purchaser is to be computed for the purposes of Article
144 of the Limitation Act... Thus if Respondent 2 could be
said to have represented the Akhara in the two earlier suits,
decrees made in them would bind Respondent 1 as he is
successor in office of Respondent 2. On the other hand if
Respondent 2 did not represent the Akhara, the possession of
the appellant under the decree passed in these suits would
clearly be adverse to the Akhara upon the view taken in the two
decisions of the Privy Council just referred to. The first
respondent's suit having been instituted after the appellant has
completed more than 12 years of adverse possession must,
therefore be held to be barred by time. For these reasons
disagreeing with the courts below we set aside the decrees of
the courts below and instead dismiss the suit of
Respondent 1 with costs in all the courts.‖
(Emphasis supplied)

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423. In a subsequent decision of this Court in Sarangadeva Periya Matam v

Ramaswami Goundar(Dead) by Legal Representatives 221, the Mathadhipathi

had granted a perpetual lease of a portion of the disputed property to the

grandfather of the plaintiffs on annual rent. Since 1883 when the lease was

granted and until January 1950, the respondents were in uninterrupted

possession of the property. In 1915, the Mathadhipathi died without a successor

and the plaintiffs did not pay any rent. Between 1915 and 1939, there was no

Mathadhipathi and some person was in management of the Math for twenty

years. A Mathadhipathi was elected in 1939. In 1928, the Collector of Madurai

passed an order to resume the Inam lands, and directed full assessment of the

lands and payment of the assessment to the Math for its upkeep. After

resumption, a joint patta was issued in the name of the plaintiff and other persons

in possession of the lands. The respondents continued to possess the suit lands

until January 1950 when the Math obtained possession. On 18 February 1954,

the respondents instituted the suit against the Math represented by its then

Mathadhipathi and an agent of the math claiming recovery of possession of the

suit lands. The Trial Court decreed the suit. In appeal, the District Judge set aside

the decree and dismissed the suit. In second appeal, the High Court of Madras

restored the decree of the Trial Court. The respondent contended that he had

acquired title to the lands by adverse possession and by the issue of a ryotwari

patta in his favour on the resumption of the Inam. The appellant contended that

the right to sue for the recovery of the Math properties vests in the legally

appointed Mathadhipathi and adverse possession against him would not run until

221 AIR 1966 SC 1603

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his appointment. A three judge Bench of this Court noted that like an idol, a Math

is a juristic person which must act through a human agency and a claim of

adverse possession was maintainable against it:

―6. We are inclined to accept the respondents' contention.

Under Article 144 Indian Limitation Act, 1908, limitation for a
suit by a math or by any person representing it for possession
of immovable properties belonging to it runs from the time
when the possession of the defendant becomes adverse to
the plaintiff. The math is the owner of the endowed property.
Like an idol, the math is a juristic person having the
power of acquiring, owning and possessing properties
and having the capacity of suing and being sued. Being
an ideal person, it must of necessity act in relation to its
temporal affairs through human agency... It may acquire
property by prescription and may likewise lose property
by adverse possession. If the math while in possession of
its property is dispossessed or if the possession of a stranger
becomes adverse, it suffers an injury and has the right to sue
for the recovery of the property. If there is a legally appointed
mathadhipathi, he may institute the suit on its behalf; if not,
the de facto mathadhipathi may do so, see Mahaleo Prasad
Singh v. Koria Bharti [(1934) LR 62 IA 47, 50] ; and where,
necessary, a disciple or other beneficiary of the math may
take steps for vindicating its legal rights by the appointment of
a receiver having authority to sue on its behalf, or by the
institution of a suit in its name by a next friend appointed by
the Court. With due diligence, the math or those interested in
it may avoid the running of time. The running of limitation
against the math under Article 144 is not suspended by
the absence of a legally appointed mathadhipathi; clearly,
limitation would run against it where it is managed by a
de facto mathadhipathi. See Vithalbowa v. Narayan Daji
Thite [(1893) ILR 18 Bom 507, 511] , and we think it would
run equally if there is neither a de jure nor a de facto
mathadhipathi.‖ (Emphasis supplied)

Justice R S Bachawat held that when possession of the property became

adverse, limitation against the Math would run even in the absence of a de jure or

de facto Mathadhipathi. While noting the decision of the Privy Council in

Maharaja Jagadindra Nath, this Court declined to extend the principle that the

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―right to sue for possession‖ is to be divorced from the ―proprietary right‖ to the

property which is vested in the idol:

―8… in giving the benefit of Section 7 of the Indian Limitation

Act, 1877 to the shebait, the Privy Council proceeded on the
footing that the right to sue for possession is to be divorced
from the proprietary right to the property which is vested in the
idol. We do not express any opinion one way or the other on
the correctness of Jagadindra Nath Roy case [ILR 32 cal 129,
141] . For the purposes of this case, it is sufficient to say that
we are not inclined to extend the principle of that case. In that
case, at the commencement of the period of limitation there
was a shebait in existence entitled to sue on behalf of the idol,
and on the institution of the suit he successfully claimed that
as the person entitled to institute the suit at the time from
which the period is to be reckoned, he should get the benefit
of Section 7 of the Indian Limitation Act, 1877. In the present
case, there was no mathadhipathi in existence in 1915 when
limitation commenced to run. Nor is there any question of the
minority of a mathadhipathi entitled to sue in 1915 or of
applying Section 6 of the Indian Limitation Act, 1908.‖

Decision of the High Court

424. On the aspect of whether a deity can be regarded as a perpetual minor,

Justice S U Khan held that an idol of a deity is not a perpetual minor for the

purpose of limitation and debutter property can be lost through adverse

possession. The view of the learned Judge was that the observation in

Bishwanath v Sri Thakur Radha Ballabhji222 that an idol is in the position of a

minor was not in the context of the law of limitation. On the contrary, in the view of

the learned Judge, the decisions in Dr Gurdittamal Kapur and Sarangadevi

222 (1967) 2 SCR 618

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Periya Matam were of three judge Benches (Bishwanath, being decided by a

Bench of two judges). Both the three judge Bench decisions supported the view

that the law of limitation would be applicable. Moreover, the Privy Council in

Masjid Shahidganj v Shiromani Gurdwara Prabandhak Committee,

Amritsar223 had noted that there had never been any doubt that the property of a

Hindu religious endowment is subject to the law of limitation.

Justice Sudhir Agarwal, on the other hand was of the view that though the suit as

it was earlier filed, pertained to a wider area, the extent of the dispute (following

the judgment of this Court in Ismail Faruqui) was confined to the inner and outer

courtyards. In the view of Justice Agarwal, this being the birth-place of Lord Ram

which Hindus had been visiting since time immemorial and the deity being ―in

the form of a place‖ it ―can never be destroyed nor could be destructed‖. Hence,

if the deity claims a declaration from the court, the plea of limitation would not be

applicable and there was no reason to take recourse to Section 6 or Section 7 of

the Limitation Act.

Justice D V Sharma relied upon the decision in Bishwanath and came to the

conclusion that a deity is a minor for the purposes of Section 6 of the Limitation

Act and extending the benefit available to a minor to a deity would do no injustice

to the world at large.

425. The analysis of the legal position on the applicability of the law on

perpetual minority by Justice S U Khan commends itself. Based on the judicial

223 AIR 1940 PC 116

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precedents analysed above, it is an established position that a deity cannot on the

ground of being a perpetual minor stand exempted from the application of the

Limitation Act. The submission which was urged by Mr C S Vaidyanathan is

contrary to the jurisprudence of close to a century on the issue. We follow the line

of precedents emanating from the Privy Council, this Court and several High

Courts noted earlier. The applicability of the law of limitation cannot be ruled out

on the basis of the theory of perpetual minority.

For the reasons which we have been already been adduced above, the reasons

which weighed with Justice Sudhir Agarwal and Justice DV Sharma while

construing the applicability of the Limitation Act are incorrect. The decision of the

two judge Bench in Bishwanath did not deal with the issue of the applicability of

the Limitation Act and the observations that a deity is a minor cannot be extended

by implication to create an exemption to the applicability of the law of limitation.

Such an extension would be contrary to the consistent precedents emanating

from the Privy Council as well as in the decisions of this Court and the High

Courts. Justice D V Sharma has read into the provisions of Section 6 of the

Limitation Act that the same principle which applies to a minor also applies to a

deity. Such an extension cannot be arrived at by implication or by interpretation.

Limitation in Suit 5

426. Each of the three judges of the Allahabad High Court furnished reasons

of their own in holding that Suit 5 was within limitation. Justice S U Khan dealt

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with limitation in one consolidated analysis and furnished five reasons of which

the first and the fifth were held to be applicable to Suit 5. According to the learned

Judge:

(i) The Magistrate by keeping the proceedings under Section 145 pending

indefinitely, acted in excess of jurisdiction. Consequently, no final order was

passed in the Section 145 proceedings. By not doing so, it was held that

the bar of limitation would not arise; and

(ii) The court in any event was required to return a finding under Order XIV on

all issues.

Justice Sudhir Agarwal held that the plea of limitation in Suit 5 must be

understood in the context of the following facts:

(i) The place in dispute is believed by Hindus to be the birth-place of Lord

Ram and has been worshipped as such since time immemorial;

(ii) A non-Hindu structure in the nature of a mosque was raised at the

command of the Muslim ruler before the visit of Tieffenthaler (1766-71);

(iii) Despite the above construction, Hindus continued to visit it and offer

worship according to their belief that it was the birth-place of Lord Ram;

(iv) Though the structure of the building was treated as a mosque it did not

impact the beliefs of the Hindus;

(v) Within the premises of the undivided mosque, there was a non-Islamic

structure of a Bedi which was noticed by Tieffenthaler in his account;

(vi) Other Hindu structures were added with the passage of time including Sita

Rasoi, Ramchabutra and Bhandar;

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(vii) These structures were noticed in 1858, 1873, 1885, 1949 and 1950 and

continued until the demolition of the entire structure on 6 December 1992;

(viii) Though the entire disputed structure was called a mosque, the British

Government recognised the rival claims of both the communities by

dividing the disputed area in two parts within which each community could

separately offer prayer and worship;

(ix) Despite this division, Hindus not only kept possession of the outer

courtyard but continued to enter the inner courtyard in spite of repeated

complaints and removal orders fortified by the record between 1858 to

1885;

(x) Treating the disputed structure as a mosque, the British Government

allowed a Nankar grant to two Muslims in pursuance of which they claimed

to have incurred expenses on the maintenance of the building;

(xi) On 22/23 December 1949, idols of Lord Ram were placed by Hindus in the

inner courtyard;

(xii) On 29 December 1949, the inner courtyard was attached under Section

145 in spite of which the Magistrate ensured that worship of the idols

placed under the central dome continued after which the civil court passed

an order of injunction on 16 January 1950, which was clarified on 19

January 1950, confirmed on 3 March 1951 and which attained finality on 26

April 1955;

(xiii) Since 23 December 1949, worship had continued by the Hindus while on

the other hand, no Muslim had entered the premises or offered namaz;

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(xiv) Since 29 December 1949, worship by Hindus continued from the iron grill

door of the dividing wall and only priests were allowed to enter the

premises for worship; and

(xv) The District Judge, by an order dated 1 February 1986, directed the

removal of locks and the opening of doors to permit the Hindus to pray to

the idols in the inner courtyard.

On the basis of the above facts, Justice Sudhir Agarwal held that worship of the

deities had continued and there was no action or inaction in respect of which the

plaintiffs could claim a right to sue governed by a particular period of limitation.

The learned judge held that in the preceding few hundred years, the only action

which may have arisen to adversely affect the interest of the plaintiffs was the

raising of the disputed structure. In spite of this, the place in dispute continued to

be used by the Hindus for the purposes of worship. On the other hand, there is

no mention of any Muslim having offered namaz from the date of the construction

until 1856-57. In view of the above facts, there was no action for the Hindus to be

aggrieved on a particular date, giving rise to a right to sue for the purposes of

limitation. Consequently, the judge held that Suit 5 could not be held to be barred

by limitation.

Justice DV Sharma held that the deity is a minor for the purpose of Section 6 of

the Limitation Act and came to the conclusion that Suit 5 was within limitation.

427. It now becomes necessary to address the fundamental issue as to

whether Suit 5 is barred by limitation. In assessing whether Suit 5 is within or

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beyond limitation regard must be had to the position that in the remaining suits

which were initiated before the Allahabad High Court (Suits 1, 3 and 4), neither of

the plaintiffs in Suit 5 were impleaded. The averment in Suit 5 is that both the first

and second plaintiffs have a distinct juridical personality of their own. The first

plaintiff has a distinct juridical personality independent of the worshippers. In

paragraph 18 of the plaint, the plaintiffs aver that some of the parties to the earlier

suits who are worshippers are to some extent ―involved‖ in seeking to gratify

their personal interests to be served by obtaining control over the worship of the

plaintiff deities.

428. Significantly, even after the attachment of the disputed property on 29

December 1949 the sewa-puja of the plaintiff deities continued. Therefore, it

cannot be contended that the cause of action in Suit 5 arose on 29 December

1949 and pertains to the obstruction of worship and prayer or the attachment of

the disputed property. The pleadings in Suit 5 refers to all the previous suits filed

with respect to the disputed property. The defendants in Suit 5 include the plaintiff

in Suits 1, 3 and 4, besides Muslim and Hindu parties and the State and its

officials. Suit 5 is founded on the plea that as a matter of fact, the interest of the

deities was not being safeguarded by the persons or entities who were pursuing

the earlier proceedings. When Suit 5 was instituted, the legal personality of the

first and second plaintiff had not been adjudicated upon. Upon the institution of

Suit 5, the plaintiffs in Suit 3 and Suit 4 expressly denied that the second plaintiff

was an independent object of worship and a legal person. Further, the

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apprehension of the plaintiffs in regard to the interest of the deity of Lord Ram not

being protected was abundantly established in the stance which was taken by

Nirmohi Akhara in its written statement filed on 14 August 1989. Nirmohi Akhara

denied that the plaintiffs were entitled to any relief and set up the plea that the

premises mentioned by the plaintiffs belong to Nirmohi Akhara and that the

plaintiffs have no right to seek a declaration ―against the right and titles of the

Nirmohi Akhara‖. Indeed, the Nirmohi Akhara construed the suit as ―the threat

to demolish the temple of the Nirmohi Akhara for which the suit of the Akhara is

pending‖. Nirmohi Akhara set up the plea that the idol of Lord Ram is installed not

at Ram Janmabhumi at Ayodhya but in the temple known as Ram Janmabhumi

temple, for whose delivery of charge and management Nirmohi Akhara had filed

its suit. In response to the injunctive relief sought by the plaintiffs, Nirmohi Akhara

set up the plea that it alone has a right to control, supervise and repair or even to

reconstruct the temple if necessary. Nirmohi Akhara set up the plea that the trust

which has been set up in 1985 was with an ―obvious design‖ to damage the title

and interest of the Nirmohi Akhara. On the maintainability of Suit 5, both the

Sunni Central Waqf Board and the Nirmohi Akhara raised similar objections,

which have been re-affirmed by their stand taken in the course of the present

proceedings. Dr Rajeev Dhavan, leading the arguments for the Sunni Central

Waqf Board submitted that though Suit 3 is barred by limitation, that does not

extinguish the right of Nirmohi Akhara to pursue its claim as a shebait. It was

urged that Nirmohi Akhara being the shebait, Suit 5 is not maintainable. The case

of the plaintiffs that the institution of the Suit 5 was necessitated as a result of the

deity not being a party to the earlier suits and based on the apprehension that in

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the existing suits, the personal interests of the leading parties were being pursued

without protecting the independent needs and concerns of the deity of Lord Ram,

is well and truly borne out by the proceedings as they unfolded in the proceedings

before this Court. The cause of action in Suit 5 cannot be considered to be barred

by limitation on a proper construction of the basis of the cause of action for the

institution of the suit.

The Suit by Nirmohi Akhara (Suit 3) was for management and charge of what it

described as the Ram Janmabhumi temple. Its claim of being a shebait had not,

as of the date of the institution of Suit 3, been adjudicated. It was not a de-jure

shebait (there being no deed of dedication) and its claim of being a de facto

shebait had to be established on evidence. Suit 5 is founded on the plea that the

needs and concerns of the deity of Lord Ram were not being protected and that

the parties to the earlier suits were pursuing their own interests. This

apprehension as the basis of Suit 5 is not without substance. For, Nirmohi Akhara

in its defence travelled beyond the claim of management and charge, seeking to

place reliance on its alleged ―right and titles‖ and its ―title and interest‖ as

noted above. The Sunni Central Waqf Board made joint cause with Nirmohi

Akhara by supporting the cause of Nirmohi Akhara as a shebait, to buttress its

challenge to the entitlement of the deity to protect its interests through a next

friend. Nirmohi Akhara has an interest hostile to the deity when it speaks of its

own ‗title and interest‘. In this backdrop, the cause pleaded in Suit 5 at the behest

of the deity of

Lord Ram cannot be held to be beyond limitation.

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429. Mr Parasaran submitted that Suit 5 essentially looks to the future and

for the need to construct a temple dedicated to Lord Ram on the site of Ram

Janmabhumi. Dr Dhavan criticised this as well as the constitution of the trust of

1985 and the Nyas as part of a wider agenda which led to the event of 1992. This

criticism in our view cannot be factored in while determining whether as a matter

of law, Suit 5 is barred by limitation. Simply put, Suit 5 contains a plea that by

virtue of the deity not being a party to the earlier suits, its interests and concerns

were not being adequately protected in the earlier suits including those instituted

by the Hindu parties. The reasons which weighed with Justice Agarwal in holding

Suit 5 to be within limitation, to the extent summarised above, commend

themselves for acceptance. On the basis of the above discussion, it must be held

that Suit 5 is instituted within the period of limitation.

N.8 The Suit of 1885 and Res Judicata

Issues

430. The plea of res judicata hinges on the content and outcome of a suit which

was instituted in 1885 by Mahant Raghubar Das seeking a decree for the

construction of a temple at Ramchabutra. Specific issues on whether the doctrine

of res judicata is attracted were drawn up in Suits 1, 4 and 5, thus:

Suit 1

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Issue 5(a):- Was the property in suit involved in Original Suit No. 61/280 of 1885

in the Court of Sub-Judge, Faizabad, Raghubar Das Mahant v Secretary of State

for India and others.

Issue 5(b):- Was it decided against the plaintiff.

Issue 5(c):- Was the suit within the knowledge of Hindus in general and were all

Hindus interested in the same.

Issue 5(d):- Does the decision bar the present suit by principles of res judicata

and in any other way.

Suit 4

Issue 7(a):- Whether Mahant Raghubar Dass, plaintiff of Suit No. 61/280 of 1885

had sued on behalf of Janmasthan and whole body of persons interested in

Janmasthan.

Issue 7(b):- Whether Mohammad Asghar was the Mutawalli of alleged Babri

Masjid and did he contest the suit for and on behalf of any such mosque.

Issue 7(c):- Whether in view of the judgment in the said suit, the members of the

Hindu community, including the contesting defendants, are estopped from

denying the title of the Muslim community, including the plaintiffs of the present

suit, to the property in dispute; if so, its effect.

Issue 7(d):- Whether in the aforesaid suit, title of the Muslims to the property in

dispute or any portion thereof was admitted by plaintiff of the that suit; if so, its

effect.

Issue 8 - Does the judgment of case No. 6/280 of 1885, Mahant Raghubar Dass

v Secretary of State and others, operate as res judicata against the defendants in

suit.

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Suit 5

Issue 23:- Whether the judgment in Suit No. 61/280 of 1885 filed by Mahant

Raghubar Das in the Court of Special Judge, Faizabad is binding upon the

plaintiffs by application of the principles of estoppel and res judicata as alleged by

the defendants 4 and 5.

The plaint of 1885

431. The Suit of 1885 was instituted by Mahant Raghubar Das, describing himself

as ―Mahant Janamsthan situated at Ayodhya‖. The suit was initially instituted

only against the Secretary of State for India. The plaint in the suit of 1885 is as

under:

―IN THE COURT OF MUNSIF SAHIB BAHADUR

Mahant Raghubar Das
Mahant Janmsthan
Situated at Ayodhya Plaintiff

versus

Secretary of State for India

in the Session of Council Defendant

The plaintiff abovenamed Submit as under:

Suit for grant of permission for construction of Mandir, i.e.,

prohibition to the defendant that plaintiff should not be
restrained from construction of Mandir on
chabootraJanmashtan situated at Ayodhya, North 17 feet,
East 21 feet, South 17 feet, West 21 feet and the value of the
suit cannot be fixed as per market rate therefore as per Item
No. 17, paragraph 6, Appendix-II, Act, 1870, court fee was
affixed and the position of the site can be known very well
from the attached map/sketch.

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Section 1: That the place of janmsthan situated at Ayodhya

City, Faizabad is a very old and sacred place of worship of
Hindus and plaintiff is the Mahant of this place of worship.

Section 2: That the chabootra janmasthan is East-West 41

feet and North-South 17 feet. Charan Paaduka is fixed on it
and small temple is also placed which is worshipped.

Section 3: That the said chabootra is in the possession of the

plaintiff. There being no building on it, the plaintiff and other
faqirs are put to great hard ship in summer from heat, in the
monsoon from rain and in the winter from extreme cold.
Construction of temple on the chabootra will cause no harm
to anyone. But the construction of temple will give relief to the
plaintiff and other faqirs and pilgrims.

Section 4: That the Deputy Commissioner Bahadur of

Faizabad from March or April 83, because of the objection of
a few Muslims opposed the construction of the mandir, this
petitioner sent a petition to the local government regarding
this matter where no reply received about this petition. Then
the plaintiff sent a notice as required under Section-444 of the
Code (of Civil Procedure) on 18th August, 1883 to the office
of Secretary, Local Government but this too remained
unreplied. Hence the cause for the suit arise from the date of
prohibition at Ayodhya under the jurisdiction of the Court.

Section 5: That a well-wishing subject has a right to construct

any type of building which it wishes as the land possessed
and owned by it. It is the duty of fair and just government to
protect its subjects and provide assistance to them in availing
their rights and making suitable bandobast for maintenance of
law and order. Therefore the plaintiff prays for issue of the
decree for construction of temple on chabootra –
Janmasthan situated at Ayodhya North 17 feet, East 41
feet, South 17 feet and West 41 feet and also to see that
the defendant does not prohibit and obstruct the
construction of mandir and the cost of the suit should be
ordered to be borne by the defendant.

I Raghubar Das Mahant Janmasthan, Ayodhya Certify that

the contents of the plaint and all five points are true and
correct to the best of my knowledge and belief.

Signature of Mahant Raghubardas

in Hindi script.‖

(Emphasis supplied)

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The plaintiff averred that the place of the Janmabhumi is ancient and sacred and

is a place of worship for the Hindus. The plaintiff claimed to be the Mahant of this

place of worship. The ―chabootra janamsthan‖ was described as admeasuring

―East-West 41 feet and North-South 17 feet.‖

It was pleaded that there was a Charan Paduka fixed on it and that there was a

small temple which was worshipped. The plaintiff claimed to be in possession of

the Chabutra. The plaintiff averred that he and other faqirs were inconvenienced

in inclement weather and that the construction of a temple ―on the Chabutra‖

would not cause harm to anyone else. However, it was stated that the Deputy

Commissioner of Faizabad had opposed the construction of the temple and

despite a notice under the Code of Civil Procedure dated 18 August 1883, the

government had not taken any action. The basis of the claim was that a

―subject‖ has a right to construct a building on land which is possessed and

owned by him.

The defence in 1885

432. Though the Muslims were originally not impleaded as parties to the suit,

Mohd Asghar, in his capacity as a Mutawalli applied to be impleaded and was

made a party to the suit. In his written statement, Mohd Asghar set up a plea that

the mosque was constructed by Babur. He stated that ownership could not be
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claimed by the plaintiff who had not produced any material originating in the

emperor or the ruler of the time in support of the plea. Essentially, the defence

was that:

(i) The plaintiff had no title to the Chabutra;

(ii) Ingress and egress for the purposes of worship does not prove ownership;

(iii) The Chabutra came up in 1857; and

(iv) The construction of the Chabutra did not confer any right of ownership and

new construction on it had been restrained by the government as a result of

which a hut which was set up by a faqir had been demolished.

It was argued that the spot was disputed between the Hindus and Muslims

resulting in a communal incident.

Findings

433. In his judgment dated 24 December 1885, the Sub-Judge at Faizabad

accepted the possession and ownership of the Hindus of the area surrounding the

wall of the Masjid. However, the Sub-Judge held that if permission for the

construction of the temple were granted, a serious situation endangering law and

order would arise between the two communities. The Sub-Judge held:

―Over and above this, on the temple situated on the

chabootra an idol of Thakurji is kept which is being
worshipped. The chabootra is in the possession of the plaintiff
and whatever is offered on it is taken by the plaintiff.
The possession of plaintiff is proved by the witnesses of the
plaintiff and railing wall separating the boundary of Hindus
and Muslims exists from a long period...
In the year 1855, after the quarrel between Hindus and
Muslims a wall in the form of the railing was erected to avoid

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controversy. So that Muslims may worship inside it and

Hindus may worship outside it. So the outside land with
chabootra which is in the possession of the plaintiff belongs to
Hindus.
Though the place where Hindus worship they hold its
possession since old because of which there cannot be
objection to their ownership and the area surrounding around
the wall of the Masjid and on the outer door word Allah is
engraved.‖

Despite the above findings on possession by and ownership of the Hindus, the

suit was dismissed because a serious breach of law and order was apprehended.

In appeal, the judgment of the trial court dismissing the suit was affirmed by the

District Judge, Faizabad on 18/26 March 1886. The District Judge held that while

it was unfortunate that a mosque had been constructed on land held sacred by

the Hindus, an event which had occurred over three centuries earlier could not be

remedied:

―It is most unfortunate that a Masjid should have been built

on land specially held sacred by the Hindu, but as that event
occurred 356 years ago it is too late to remedy the grievance
all that can be done is to maintain that parties in status quo.‖

The District Judge noted on a site inspection that the Chabutra had been

occupied by the Hindus on which there was ―a small superstructure of wood, in

the form of tent‖. The Chabutra was said to indicate the birth-place of Lord Ram.

While maintaining the dismissal of the Suit, the District Judge came to the

conclusion that the observations on possession and ownership in the judgment of

the trial judge were redundant and were hence to be struck off. The judgment of

the first appellate court was carried before the Judicial Commissioner, Oudh in a

second appeal, who affirmed the dismissal of the suit on 2 November 1886. The

Judicial Commissioner observed:

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―The matter is simply that the Hindus of Ajudhia want to

erect a new temple of marble … over the supposed holy spot
in Ajudhia said to be the birthplace of Sri Ram Chandar. Now
this spot is situate within the precincts of the grounds
surrounding a mosque constructed some 350 years ago
owing to the bigotry and tyranny of the Emperor Baber-who
purposely chose this holy spot according to Hindu legend- as
the site of his mosque.
The Hindus seem to have got very limited rights of access to
certain spots within the precincts adjoining the mosque and
they have for a series of years been persistently trying to
increase their rights and to erect building over two spots in
the enclosure.
(1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi. The
executive authorities have persistently repressed these
encroachments and absolutely forbid any alteration of the
‗status quo‘.
I think this a very wise and proper procedure on their part and
I am further of opinion that Civil Courts have properly
dismissed the plaintiff's claim.
The pleas on appeal to this … are wholly unsupported by
facts in the case or by any document that appears to me …
some of the reasoning of the Lower Appellant Court as to the
limitations of the Civil Court jurisdiction. However I approve of
their final conclusion to which it has come – and I see no
reason to interfere with its order modifying the wording of part
of the judgment of the Court of First Instance. There is
nothing whatever on the record to show that plaintiff is in any
sense the proprietor of the land in question. This appeal is
dismissed with costs of all Courts.‖

Submissions

434. Relying on the above observations of the Judicial Commissioner, Mr

Shekhar Naphade, learned Senior Counsel emphasised five facets from the

decision:

(i) The existence of the mosque;

(ii) The construction of a Chabutra in close-proximity;

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(iii) The availability of a limited right of access to the Hindus;

(iv) The restraint imposed by the executive on attempted encroachments by the

Hindus; and

(v) The rejection of the claim of the Hindus to ownership and possession.

435. All the three Judges of the Allahabad High Court rejected the plea of res

judicata. Justice S U Khan held that the only thing which had been decided

in the Suit of 1885 was that the status quo should be maintained in order to

obviate the likelihood of riots between the two communities. In his view:

―Refusal to decide the controversy is the actual decision in

the said suit‖.

Assailing the above finding, Mr Naphade urged that there was an error on the part

of the learned Judge in coming to the conclusion that nothing substantial had

been decided in the Suit of 1885. He submitted that the judgment of the Judicial

Commissioner indicated that Hindus had a limited right of access and that their

claim of possession and ownership stood rejected.

436. Justice Sudhir Agarwal held that in the Suit of 1885, the only dispute was in

regard to the construction sought to be made on the Chabutra. Hence, the

suit did not relate to the entirety of the disputed site or building and the right

of ownership or possession in respect of any part of the land in dispute was

not involved. Justice Sudhir Agarwal held that unlike the suits which the

High Court was adjudicating upon, only a portion of the property was

involved in the Suit of 1885.

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437. Assailing these findings, Mr Naphade urged that:

(i) Justice Sudhir Agarwal failed to notice the observations of the Judicial

Commissioner in the earlier suit to the effect that the Hindus had a limited

right of access and no right of possession or ownership;

(ii) The finding on the point of res judicata is contrary to the decision of this

Court in K Ethirajan v Lakshmi224, where it has been held that the principle

of res judicata would be attracted even in a situation where in the previous

suit only a portion of the property was in dispute, whereas in a latter suit the

whole of the property forms the subject matter of the claim; and

(iii) Justice Agarwal also held that there was nothing to show that the Hindus at

large were aware of the previous suit. There was a serious situation of law

and order which gave rise to a dispute between the two communities at or

about the time when the Suit of 1885 was instituted. Therefore, an

inference can be drawn under Section 114 of the Evidence Act that the

Hindus were aware of the suit. A reasonable inference can be drawn from

primary facts even if there is no direct evidence of the awareness of the

Hindus of the institution of the earlier suit.

Justice D V Sharma, while coming to the conclusion that the bar of res judicata

was not attracted, held that the earlier suit was not of a representative character

since the requirements of public notice under Section 539 of the Code of Civil

Procedure 1882 were not complied with. The learned Judge observed that neither

were the parties to the earlier suit the same as those in the present proceedings,

224 (2003) 10 SCC 578

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nor was the subject matter identical since the earlier suit only related to the

Chabutra. Assailing these findings, Mr Naphade urged that the plaint in the earlier

suit was for the benefit of the Hindus; the Secretary of State in Council

represented all segments of the community and, in any event, the absence of a

public notice under Section 539 would not obviate the bar of res judicata. In his

submission, the application of Explanation VI to Section 11 of the CPC 225 is not

subject to Order 1 Rule 8.

438. Apart from assailing the findings which have been recorded by each of the

three judges of the Allahabad High Court on the plea of res judicata, Mr Naphade

has urged that the provisions contained in Section 11 of the CPC 1908 stand

attracted for the following reasons:

(i) The matter has been directly and substantially in issue in the former suit

between the parties since:

(a) the claim of ownership of possession of the Hindus was rejected

by the Judicial Commissioner in the Suit of 1885; and

(b) there was no challenge to the existence of the mosque in the

previous suit as a consequence of which there is an implicit

acceptance of the title and right of the Muslims;

(ii) The plaintiff in the earlier suit who described himself as a Mahant of the

Janmasthan essentially represented the cause of the Hindus and hence,

res judicata would apply. The earlier suit was ―between the same parties

225 Section 11 provides thus :

Explanation VI – Where persons litigate bona fide in respect of a public right or of a private right claimed in
common for themselves and others, all persons interested in such right shall, for the purposes of this section, be
deemd to claim under the persons so litigating.

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or between parties under whom they or any of them claim litigating under

the same title‖; and

(iii) The cause of action in the former suit is the same as that in the present

batch of cases. The title to the property claimed by the Hindus is the same

in both the suits and the cause of action is based on the right to construct

the temple.

On these grounds, Mr Naphade submitted that the bar of res judicata is attracted

under Section 11 read with Explanation VI of the CPC. He urged that the failure to

follow the provisions of Section 30 of the Code of 1882 (akin to Order 1 Rule 8 of

the CPC 1908) should make no difference since the provisions of Section 11 are

not subject to Order 1 Rule 8.

Mr Naphade also urged that the principle of constructive res judicata under

Explanation IV to Section 11 is attracted. Finally, he submitted that the earlier

findings in the Suit of 1885 would operate as issue estoppel and since the order in

the earlier suit was in rem; all Hindus would stand bound by the conclusion. He

urged that the plan, which was annexed to the Suit of 1885, was essentially the

same and hence the principle of estoppel by record would stand attracted.

Controverting the submissions, Mr K Parasaran, learned Senior Counsel

appearing on behalf of the plaintiffs in Suit 5 submitted that the principles of res

judicata are not attracted for the following reasons:

A. Parties are different:

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(i) Neither the deities (the plaintiffs in Suit 5) nor the Sunni Central Waqf

Board (the plaintiff in Suit 4) were parties to the Suit of 1885; and

(ii) The Suit of 1885 was not instituted by Mahant Raghubar Das in a

representative capacity.

B. The suit was for asserting a personal right to construct a temple on the

Chabutra:

(i) No application under Section 30 of the CPC 1882 which was in force

when the earlier suit was instituted, corresponding to Order I Rule 8

of the CPC 1908 was filed;

(ii) Neither the deities nor the Hindu public claimed any right through

Mahant Raghubar Das in 1885;

(iii) In Suit 4, an order was passed on 8 August 1962 under which the

plaintiffs sued in their representative capacity on behalf of the

Muslims and defendant nos 1 to 4 were permitted to be sued on

behalf of the Hindus; and

(iv) Even assuming that the earlier suit was filed on behalf of all Hindus,

the plaintiff-deities in Suit 5 are not bound by its outcome in view of

the decision of this Court in Narayan Bhagwantrao Gosavi

Balajiwale v Gopal Vinayak Gosavi226.

C. Issues and reliefs sought in the earlier suit are different:

(i) The Suit of 1885 was against the Secretary of State for India, for

permission to construct a temple;

226 1960 (1) SCR 773

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(ii) The present proceedings pertain to the character of the

propertywhether it is a public mosque or a place of public worship for

Hindus; and

(iii) In Suit 5, the issue as to whether ‗Asthan Ram Janmabhumi‘ is a

juridical personality is an issue, which goes beyond the relief of the

construction of a temple sought in the Suit of 1885. D. The suit

properties are distinct:

(i) In the Suit of 1885, the subject matter was only the Chabutra

measuring 17x21 feet; and

(ii) In the present proceedings, the suit property in both Suits 4 and 5

comprises of the inner and outer courtyard.

E The Suit of 1885 was instituted when the CPC 1882 was in force. Section 13 of

the CPC 1882 dealt with res judicata. Explanation V as it stood only

covered persons who were litigating in respect of a private right claimed in

common for themselves and others. In the CPC 1908, the expression

―public right‖ was added to Explanation VI in view of the provisions of

Section 91. The provisions of the CPC are both procedural and substantive.

In the Suit of 1885 only a private right was sought to be enforced, whereas

in the present proceedings a public right to worship is sought to be

enforced. Even if the CPC 1882 was to be applied, which law prevailed as

on the date of the filing of the Suit of 1885, the findings in that suit (which

sought to enforce only a private right) would not operate as res judicata.

Analysis

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439. The applicability of Section 11 is premised on certain governing principles.

These are:

(i) The matter directly and substantially in issue in the suit should have been

directly and substantially in issue in a former suit;

(ii) The former suit should be either between the same parties as in the latter

suit or between parties under whom they or any of them claim litigating

under the same title;

(iii) The court which decided the former suit should have been competent to try

the subsequent suit or the suit in which the issue has been subsequently

raised; and

(iv) The issue should have been heard and finally decided by the court in the

former suit.

Explanation VI to Section 11 is in the nature of a deeming provision which extends

the ambit of the expression ―between parties under whom they or any of them

claim, litigating under the same title‖. Under Explanation VI, where persons

litigate bona fide in respect of a public right or a private right which they claim in

common for themselves and others, all persons interested in such a right, shall be

deemed to claim under the persons so litigating. In other words, to attract

Explanation VI, it is necessary that there must be a bona fide litigation in which

there is a claim in respect of a public right or a private right claimed in common

together with others. It is only then that all persons who are interested in such a

right would be deemed, for the purpose of the Section, to claim under the persons

so litigating.
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Order 1 Rue 8264 contains provisions under which one person may sue or defend

a suit on behalf or for the benefit of all persons interested.

264 Order 1 Rule 8 provides

thus :
One person may sue or defend on behalf of all in same interest—
(1) Where there are numerous persons having the same interest in one suit,—
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's
expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where,
by reason of the number of persons or any other cause, such service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may
apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be
withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be
recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice
to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or
defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree
passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is
instituted, or defended, as the case may be.
Explanation.—For the purpose of determining whether the persons who sue or are sued, or defend, have the
same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the
person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.
440. The Suit of 1885 was instituted when the CPC 1882 was in force. Section

13 contained a provision in regard to res judicata. Section 13 corresponds to

Section 11 of the CPC 1908, with certain material differences. Explanation V to

Section 13 contained a deeming provision stating when persons would be

deemed to claim, litigating under the same title. However, Explanation V to

Section 13 covered only persons litigating in respect of a private right claimed in

common for themselves and others. In contrast, Explanation VI to Section 11 of

the CPC 1908 covers persons litigating in respect of a public right or a private

right in common for themselves and others. This distinction between Explanation

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V of Section 13 in the CPC 1882 and Explanation VI to Section 11 of the CPC

1908 is brought out in the following table containing the two provisions:
Section 13 CPC 1882 Section 11 CPC 1908

Explanation V – Where persons Explanation VI – Where persons

litigate bonafide in respect of a private litigate bonafide in respect of a public

right claimed in common for
themselves and others, all persons right or of a private right claimed in
interested in such right shall, for the
purpose of this section, be deemed to common for themselves and others, all
claim under the persons so litigating.
persons interested in such right shall,

for the purpose of this section, be

deemed to claim under the persons so

litigating.

It may be noted at this stage that Section 92 of the CPC 1908 contains a provision

corresponding to Section 539 of the CPC 1882. However, the CPC

1908 introduced Section 91 to deal with public nuisances and other wrongful acts

affecting the public. The words ―of public right‖ were introduced in Explanation

VI of Section 11 of the CPC 1908 in order to give due effect to suits relating to

public nuisances incorporated in Section 91. Thus, the deeming provision

contained in Explanation V to Section 13 of the CPC 1882 was expanded in the

corresponding provision contained in Explanation VI to Section 11 of the CPC

1908 to cover a case where persons litigate bona fide in respect of a private right

or a public right claimed in common with others. When the earlier Suit of 1885

was instituted, Explanation V had no application to a situation where persons

were litigating in respect of a public right as distinct from a private right.

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441. Mr K Parasaran, learned Senior Counsel argued that the provisions of the

CPC contain provisions some of which relate to matters of procedure while others

deal with matters of substance (See Durgesh Sharma v Jayshree265). For

instance, it has been held that the right to file an appeal from a judgment and

decree in a suit is a substantive right and this right is governed by the law which

prevailed on the date of the institution of the suit. Hence, in Garikapati Veeraya v

N Subbiah Choudhry266, a Constitution Bench of this Court held:

―23... (iii) The institution of the suit carries with it the

implication that all rights of appeal then in force are preserved
to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to
enter the superior court accrues to the litigant and exists as
on and from the date the lis commences and although it may
be actually exercised when the adverse judgment is
pronounced such right is to be governed by the law prevailing
at the date of the institution of the suit or proceeding and not
by the law that prevails at the date of its decision or at the
date of the filing of the appeal.

265
(2008) 9 SCC 648
266
1957 SCR 488
(v) This vested right of appeal can be taken away only by a
subsequent enactment, if it so provides expressly or by
necessary intendment and not otherwise.‖

Mr K Parasaran urged that Explanation V to Section 13 of the CPC 1882

excluded the application of res judicata where the earlier suit was for litigating a

public right claimed in common with others.

Justice Sudhir Agarwal rejected the submission that it was the CPC 1882 that

should be applied while analysing the application of the principles of res judicata.

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However, even on the basis that it was the CPC 1908 which would apply, the

learned Judge came to the conclusion that the Suit of 1885 and the findings which

were recorded by the Judicial Commissioner would not operate as res

judicata.

Mr K Parasaran‘s submissions essentially boil down to this: according to him

Explanation V to Section 13 of the CPC 1882 (which held the field when the Suit

of 1885 was instituted) applied when the earlier suit was being litigated on the

basis of a private right claimed in common with others. Hence, a subsequent suit

for agitating a public right claimed in common with others is not barred by the

principles of res judicata as embodied in Explanation V. The ambit of the

explanation was expanded in the CPC 1908 while introducing Explanation VI to

Section 11 to cover a claim based on a public as well as a private right asserted in

common with others. Mr K Parasaran urges that this provision which is introduced

in Explanation VI cannot be construed to bar a suit instituted after the

enforcement of the CPC 1908 on the basis of an adjudication made in a suit

which was instituted in 1885 when the CPC 1882 held the field. This, in his

submission would not be a matter of procedure but would take away a

substantive right accruing to a party if the bar of res judicata would apply.

Consequently, unless there was an explicit stipulation in the CPC 1908 providing

for the principle of res judicata to apply to suits agitating a public right

retrospectively, the suit instituted in 1885 cannot fall within the ambit of the bar

within Explanation VI of the CPC 1908.

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For the purposes of the present proceedings, it is not really necessary to analyse

in any great detail this submission by Mr K Parasaran for, in any view of the

matter, it is evident that the Suit of 1885 would not operate as res judicata either

on the application of the provisions of Section 13 of the Code of 1882 or on the

application of Section 11 of the Code of 1908. The pleadings and the findings in

the earlier Suit of 1885 show that Mahant Raghubar Das was only asserting a

right that was personal to him. The earlier suit was not instituted in a

representative capacity; the issues framed, and reliefs sought were distinct and

so were the suit properties.

442. Before a suit can be prosecuted or defended under Order I Rule 8, it is

essential that there must be numerous persons having the same interest in a suit.

Before a person can be allowed to either prosecute or defend the suit on behalf of

others interested, specific permission of the court is mandated. Sub-rule 2 of

Order I Rule 8 requires notice of the institution of the suit to all persons interested,

in the manner as directed or by public advertisement. A person on whose behalf

or for whose benefit a suit has been instituted or is being defended may apply to

be impleaded as a party to the suit. Under sub-rule 4, no part of the claim in the

suit can be abandoned and the suit cannot be withdrawn nor can a compromise

agreement or satisfaction be recorded unless notice has been furnished to all

persons interested. Subject to compliance with the provisions contained in Order I

Rule 8, a decree in such a suit is binding on all persons on whose behalf or for

whose benefit the suit is instituted or defended.

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In Kumaravelu Chettiar v T P Ramaswami Ayyar227, the Privy Council held:

―Explanation 6 is not confined to cases covered by Order 1,

Rule 8 but extends to include any litigation in which, apart
from the Rule altogether, parties are entitled to represent
interested persons other than themselves.‖

The above principle was followed in a decision of three judges of this Court in

Narayana Prabhu Venketeswara Prabhu v Narayana Prabhu Krishna

Prabhu228. This Court held that in a partition suit, each party claiming that the

property is joint, asserts a right and litigates under a title which is common to

others who make identical claims. Hence:

―20…In a partition suit each party claiming that the property

is joint, asserts a right and litigates under a title which is
common to others who make identical claims. If that very
issue is litigated in another suit and decided we do not see
why the others making the same claim cannot be held to be
claiming a right ―in common for themselves and others‖.
Each of them can be deemed, by reason of Explanation VI, to
represent all those the nature of whose claims and interests
are common or identical. If we were to hold otherwise, it
would necessarily mean that there would be two inconsistent
decrees. One of the tests in deciding whether the doctrine of
res judicata applies to a particular case or not is to determine
whether two inconsistent decrees will come into existence if it
is not applied. We think this will be the case here.‖

443. In Gurushiddappa Gurubasappa Bhusanur v Gurushiddappa

Chenavirappa Chetni229, a learned Single Judge of the Bombay High Court

(Justice Rangnekar) held:

―Order 1, rule 8, is exhaustive of what it says, and it is clear

from it that it is only when the parties are numerous that a suit
can be brought under the provisions of Order I, rule 8. That it
is possible for a suit to be a representative suit within the

227 AIR 1933 PC 183

228 (1977) 2 SCC 181
229 AIR 1937 Bombay 238

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meaning of Explanation VI, although it need not come under

Order I, rule 8, and, therefore, need not be brought under the
provisions of that Order, has been held from very earliest
times in this country…
Explanation VI, therefore, is not confined to cases covered by
Order I, rule 8, but would include any litigation in which, apart
from the rule altogether, parties are entitled to represent
interested persons other than themselves.‖

Hence, for the purpose of considering Mr Naphade‘s arguments, we proceed on

the principle that the provisions of Order I Rule 8 do not control the applicability of

Explanation VI to Section 11 of CPC 1908. The applicability of the principles of

res judicata in the facts of the present case needs to be analysed. The position

which emerges on the touchstone of the principles contained in Section 11 is as

follows:

(i) The first point to be considered is whether the parties to the subsequent

suit are the same as the parties to the earlier suit or whether they litigate

under the same title. The earlier suit was instituted by Mahant Raghubar

Das describing himself as the Mahant of the Janmasthan situated at

Ayodhya. The suit was not instituted by Raghubar Das as the Mahant of Nirmohi

Akhara. Conspicuously absent in the Suit of 1885 is any reference to Nirmohi

Akhara. Hence, the primary requirement for the applicability of Explanation VI to

Section 11 is not attracted. The Suit of 1885 was a suit instituted by Mahant

Raghubar Das in his personal capacity. It was not a suit either in his capacity as

the Mahant of Nirmohi Akhara or a suit

instituted jointly on behalf of the Hindus;

(ii) Neither the deities who are the first and second plaintiffs to Suit 5 nor the

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Sunni Central Waqf Board which is the plaintiff in Suit 4 were parties to the

Suit of 1885. Mahant Raghubar Das instituted the earlier suit initially

impleading only the Secretary of State for Council in India. Later, Mohd

Asghar was impleaded in his capacity as a Mutawalli. The parties to the

earlier proceedings were distinct;

(iii) The relief that was sought in the earlier suit was permission to construct a

temple on Ramchabutra. In the present proceedings, the reliefs, which

have been sought, require, inter alia an adjudication in regard to the

character of the disputed property namely whether it is a mosque which is

dedicated for the public or whether it is a place of worship for the Hindus;

and

(iv) The Suit of 1885, only dealt with the Chabutra at the Janmasthan

admeasuring 17 x 21 feet, which was claimed to be in the possession of

the plaintiff. The map showing the subject matter of that suit has been

annexed to the proceedings. On the other hand, the suit property in Suits 4

and 5 comprises of both the inner and the outer courtyard. In Suit 5, the

relief which has been claimed is:

―a declaration that the entire premises of Sri Ram Janma

Bhumi at Ayodhya, as described and delineated in Annexures
I, II and III belong to the plaintiff deities.‖

Paragraph 2 of the plaint describes annexures I, II and III:

―two site plans of the building premises and of the adjacent

area known as Sri Rama Janma Bhumi, prepared by Shiv
Shankar Lal pleader… along with his Report dated
25.05.1950, are being annexed to this plaint and made part of
it as Annexures I, II and III, respectively.‖

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After the decision of the Constitution Bench in Dr M Ismail Faruqui v Union of

India230, the dispute now stands restricted only to the inner and outer courtyards,

described in Annexure I to the plaint in Suit 5. The High Court adjudicated on this

dispute as circumscribed by the directions of this Court. The suit property in suits

4 and 5 is larger than the Chabutra admeasuring 17 x 21 feet which formed the

subject matter of the earlier Suit of 1885 though, undoubtedly the Chabutra also

forms a part of the suit property.

444. In V Rajeshwari (Smt) v T C Saravanabava231, the appellant instituted

a suit in 1984 for seeking a declaration of title and for recovery of possession of

property admeasuring 1817 sq feet. Earlier in 1965, one of her predecessors-

intitle had instituted a suit for declaration of title and for possession of an area of

over 240 sq feet situated on the upper floor of the building standing on the

property against the respondent. The High Court held that the issue of title and

possession had been decided in the suit instituted by the predecessor-in-title of

the appellant and the subsequent suit was barred by res judicata. While reversing

the decision of the High Court, this Court held:

―15. Reverting back to the facts of the present case,

admittedly, the plea as to res judicata was not taken in the
trial court and the first appellate court by raising necessary
pleadings. In the first appellate court the plaintiff sought to
bring on record the judgment and decree in the previous suit,
wherein his predecessor-in-title was a party, as a piece of
evidence. He wanted to urge that not only he had succeeded
in proving his title to the suit property by the series of

230 (1994) 6 SCC 360

231 (2004) 1 SCC 551

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documents but the previous judgment which related to a part

of this very suit property had also upheld his predecessor's
title which emboldened his case. The respondent thereat,
apprised of the documents, still did not choose to raise the
plea of res judicata. The High Court should not have entered
into the misadventure of speculating what was the matter in
issue and what was heard and decided in the previous suit.
The fact remains that the earlier suit was confined to a
small portion of the entire property now in suit and a
decision as to a specified part of the property could not
have necessarily constituted res judicata for the entire
property, which was now the subject-matter of litigation.‖
(Emphasis supplied)

445. Mr Naphade relied upon a decision of a two judge Bench in K Ethirajan

v Lakshmi232, in support of the proposition that the principle of res judicata under

Section 11 is attracted where the issues directly and substantially involved

between the same parties in the previous and subsequent suits are the same,

even though in a previous suit, only a part of the property was involved while in

the subsequent suit, the whole of the property was the subject matter of the

dispute. The difficulty in accepting the plea of res judicata which has been urged

by Mr Naphade is simply this:

(i) The earlier suit by Mahant Raghubar Das in 1885 was not in a

representative capacity. Mahant Raghubar Das claimed himself to be the

Mahant of the Janmasthan. He did not set up any plea as the Mahant of

Nirmohi Akhara. The claim was personal to him;

(ii) Neither the plaintiff in Suit 4 nor the plaintiff deities in Suit 5 were parties to

the earlier proceedings. The Suit of 1885 was not instituted in a

representative capacity for and on behalf of the Hindus nor was there any

232 (2003) 10 SCC 578

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pleading to that effect. Mahant Raghubar Das did not set up any claim to

shebaiti rights nor did the adjudication deal with any claim of a shebaiti

character. On the other hand, this forms the very basis of the claim in Suit

3 and of the defence to the maintainability of Suit 5 raised on behalf of

Nirmohi Akhara;

(iii) The Trial Court while dismissing the Suit of 1885 had entered a finding that

possession and ownership of the Chabutra vested in the Hindus. The suit

was however dismissed on the ground that the grant of permission to raise

a temple would involve a serious breach of law and order. The dismissal of

the suit on this ground was affirmed in appeal by the District Judge.

However, the finding in regard to possession and ownership of the

Chabutra was rendered redundant and was accordingly directed to be

struck off. The Judicial Commissioner confirmed the dismissal of the suit.

Though, the Judicial Commissioner held that the Hindus seem to have a

limited right of access to certain spots within the precincts of the adjoining

mosque, he observed that there was nothing to establish that the plaintiff

(Mahant Raghubar Das) is the proprietor of the land in question. This

finding rendered in a suit to which neither the plaintiff-deities nor Nirmohi

Akhara were parties cannot operate as res judicata against them;

(iv) The doctrine of res judicata seeks to prevent a person being vexed twice

over in respect of a dispute founded on the same cause of action. The

cause of action for the Suit of 1885 was, as seen earlier entirely, distinct;

and

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(v) The decision in the Suit of 1885 was in personam, based on the claim

made by the plaintiff in that suit. Any observations in the judgment of the

Judicial Commissioner will neither bind the deities (plaintiffs in Suit 5) who

were not parties to the earlier proceedings nor the Hindus. Moreover, there

was no adjudication in the Suit of 1885 in respect of the claim of title made

by the Muslims in Suit 4.

446. There is absolutely no merit in the contention that the principles of

constructive res judicata will bar the subsequent suits. The parties were distinct.

The claim in the earlier suit was distinct. The basis of the claim was indeed not

that which forms the subject matter of the subsequent suits. Similarly, there is no

merit in the submission based on the doctrine of issue estoppel or estoppel by

record which has been faintly urged. Consequently, and for the above reasons,

there is no merit in the submissions which have been urged by Mr Naphade,

learned Senior Counsel objecting to the maintainability of Suit 5 on the ground of

res judicata.

N.9 Archaeological report

447. Both in the suit instituted by the Sunni Central Waqf Board233 and in the

suit instituted by the deities234, an issue was framed on whether the disputed

structure of a mosque has been erected after demolishing a temple which existed

at the site.

233 Issue 1(b) in OOS No. 4 of 1989 as follows : ―Whether the building had been constructed on the site of an
alleged Hindu Temple after demolishing the same as alleged by defendant no. 13? If so, its effect?
234 Issue No. 14 in OOS No. 5 of 1989 reads as follows : ―Whether the disputed structure claimed to be Babri
Masjid was erected after demolishing Janma Sthan Temple at its Site?‖

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448. On 1 August 2002, the High Court proposed that an excavation be

carried out by the Archaeological Survey of India235. The High Court proposed that

before excavation, ASI will survey the disputed site using Ground Penetrating

Radar236 or Geo-Radiology System. After objections to the proposed directions

were heard, they were rejected by the High Court on 23 October 2002. The ASI

had a

GPR survey conducted by a corporate entity which submitted its report to the

High Court on 17 February 2003.The report found the presence of ―anomaly

alignments across the main platform north and south of the sanctum sanctorum

corresponding to the Ramchabutra area‖. The anomalies suggested the following

position:

―…in their cross-section appearance and their areal pattern,

the ―anomaly alignments‖ may correspond to a wall
foundation of some sort. In the Ram Chabutra area, the
crossing patterns of those alignments and the different
stratigraphic units from where they (emerge) suggest that
they belong to successive construction periods rather than
being contemporary to one another.‖

The report also found that the sequence in the southern portion of the

Ramchabutra area ―may be indicative of a flooring structure of some sort,

possibly stone slabs if its origin is ancient.‖ Besides, the report indicated:

―A third type of buried structures covers the entire eastern

boundary of the site. It consists of buried mound structures
with some internal texture or structure indicative of collapsed
material. Similar types of anomalies have been detected to
the south-west area just before the terrain slopes down.‖

235 ―ASI‖
236 ―GPR‖

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In conclusion, the GPR survey reflected a variety of anomalies ranging from 0.5 to

5.5 meters in depth ―that could be associated with ancient and

contemporaneous structures such as pillars, foundations, walls slabs, flooring

extending over a large portion of a site‖. However, the survey indicated that the

exact nature of these anomalies could be determined on the basis of

archaeological trenching. Upon receiving this report, the High Court directed ASI

to conduct an excavation at the disputed site to the following extent:

―The area shown in the report of the Commissioner

submitted in Suit No. 2 of 1950 (OOS No. 1 of 1989) covering
an area of approximately 100x100 shown in the map plan No.
1 referred to by letters A,B,C,D,E,F and thereafter northern
portion up to the end of the raised platform and further to the
west, south and east to the said site to the extent of 50 feet.‖

449. The archaeologists were directed not to disturb the area where the idol

of Lord Ram was installed and an area around the idol to the extent of 10 feet.

ASI was asked not to prevent worship at the site. Following this order, the High

Court issued further directions on 26 March 2003 for recording the nature of the

excavations found at the site and the sealing of the artefacts found in the

presence of the parties and their counsel. The ASI team was directed to maintain

a record of the depth of the trenches where the artefacts were found as well as

the layer of the strata. Photographs of the findings were permitted to be taken. In

order to bring objectivity to the process and sub-serve the confidence of the

parties, the High Court ensured that adequate representation to both the

communities be maintained ―in respect of the functioning of the ASI team and

the engagement of the labourers‖. During the course of the process, the High

Court considered various objections filed by parties with respect to the

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excavation. The ASI submitted its final report on 22 August 2003 to which

objections were addressed by the Sunni Central Waqf Board and other parties.

These objections were dealt with by the High Court.

450. A wealth of arguments have been urged on the archaeological evidence

in the present dispute. The arguments touch upon diverse issues such as the

findings in the report, the inferences which have been drawn from them,

archaeology as an inferential science as well as the value of archaeological

evidence in disputes such as the present. This Court must address, inter alia: (i)

the findings of the report and the methodology adopted; (ii) the objections raised

against the findings of the report; (iii) the scope of the enquiry at the present

stage, including the degree of judicial deference to expert evidence; (iv) The

challenge to archaeological evidence as purely inferential and subjective in

nature; (v) the standard of proof and (vi) the remit of the report and questions left

unanswered. Finally, an enquiry relevant to the present controversy is the

probative value of archaeological evidence in the determination of title which shall

be adverted to in the course of the judgment.

451. The ASI report has indicated its objectives and methodology at the

commencement of the report. The manner in which trenches were planned for

excavation is indicated thus:

―In planning the excavation, it was decided to adopt the

latest technique of layout of trenches where limited spaces
are available and therefore in place of general practice of lay
out of 10x10 m. squares divided into four quadrants of
4.25x4.25 m. separated by 0.50 m. baulk all-round, the
change in the practice was made by fixing pegs at a distance

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of every 5 m in both north-south and east-west directions with

cutting area of 4x4 m in leaving 0.5 m baulk all around which
in contiguous trenches effectively left a space of 1.0 m in
between two cuttings for the easy movement of
archaeologists and labourers. One meter wide baulk was
specially provided, considering the fact that due to modern
fillings and debris the trench may not collapse due to earth
pressure in a most sensitive area.‖

The team laid trenches throughout the disputed area except for the place where

the deity has been installed and collected samples for scientific study:

―Samples of plaster, floors, bones, charcoal, palaeo-

botanical remains were also collected for scientific studies
and analysis. Trenches were also laid in the entire disputed
area on all sides excepting the area of the makeshift structure
where Ram Lala is enshrined along with its periphery at a
distance of 10 feet from Ram Lala as specified by the High
Court. The excavation work was planned in phased manner in
particular areas as per significant signals for anomalies
pointed out by the GPR Survey.‖

The work of excavation and its findings were documented by still and video

footage. ASI has excavated ninety trenches in a period of five months and

submitted its report of excavation within fifteen days of the completion of

excavation. The ASI team has carried out its task in the presence of parties and

their counsel. Excavated material including antiquities, objects of interest, glazed

pottery, tiles and bones recovered from the trenches were sealed in the presence

of parties and their advocates and lodged in a strong room provided by the

Commissioner of Faizabad Division.

The Eastern Area

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452. The ASI team initially took up excavation in the eastern area where the

enclosure wall along with remnants of a gateway were noticed, below which lie

floors and walls of earlier phases. The central part of the platform, known as the

Ramchabutra was noticed in this area constructed in five stages. The main

features which have been exposed are elucidated below:

―The main features exposed in this area include fourteen

extant courses of reused brickbats and calcrete stone blocks
in the enclosure wall with a part of 2.12 m in the middle of the
wall suggesting the entrance doorway which was topped by
marble slabs and the floor levels consisting of lime and
cement floors topped by marble dedicatory slabs of the
second half of the twentieth century. Some elongated hearths
and a furnace of late Mughal period were found (Pl.3).‖

The Southern Area

Twenty-three trenches were excavated towards south of the raised platform. The

excavation resulted in nearly fifty pillars bases of an earlier period being exposed

at two points, traces of earlier pillars bases were also found below the pillar

bases. The excavation in this area also resulted in the finding of a brick circular

shrine on its outer part and squarish on its inner with a rectangular projection for

entrance in the east and a chute on its northern side. The relevant part of the ASI

report is extracted below:

―Parts of the northern and western walls and their foundation

and the foundation of the southern and eastern sides built of
calcrete stone blocks of the disputed structure were exposed
which were found resting directly in the west over a 1.77 m
wide brick wall of earlier period, the lower part of which has
decorated stone blocks and calcrete stone foundation and
over 50 pillar bases arranged at regular intervals connected
with the lime plastered brick wall through a floor. The core of
the wall of the disputed structure was filled with brickbats. The
pillar bases comprise some courses of brick bats in squarish

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or circular formations over which two to five calcrete stone

blocks are kept, possibly below and stone blocks as found in
the northern area, though only one decorated sand stone
block was found in this area. Further below the
abovementioned brick wall another brick wall was noticed on
the top of which decorated stone blocks were found used. In
the levels further down brick structures were noticed in
trenches E8 and F8, though their full plan could not be
exposed. At two points, below the pillar bases, traces of
earlier pillar bases were also found in trenches F8 and F9
which were connected with the second floor below the floor
with which most of the other pillar bases were connected. The
brick wall mentioned above was found badly damaged on the
southern side, possibly for taking out its bricks. This wall was
found extending in the northern side of the raised platform. A
brick shrine, circular on its outer and squarish on its inner
plan with a rectangular projection for entrance in the east and
a chute on its northern side was found below the levels of
abovementioned walls. Due to steep slope in the area further
south of the trenches, it was not possible to excavate there.
The natural soil was reached in G7 at the depth of 10.84 m,
which was confirmed by digging further upto the depth of
13.20 m.
(Pl.5).‖

The Western Area

At some places remains of a brick wall having nearly fifty courses were seen.

The Northern Area

The ASI team notes:

―The massive brick wall located in the southern area was

noticed running in north-south direction in this area and below
its level another wall was also found as seen earlier in the
southern area. The top three floors and pillar bases attached
with the top floor were exposed (Pl/10). The interesting
features of the pillar bases in this area was that over the
calcrete stone blocks these bases were given proper finishing
by providing squarish stone blocks of sand stone encased
with four upright stone pieces placed on the four sides for
giving support to the pillar at the base in order to avoid any
movement. The stone blocks project a little above the floor.‖

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The Raised Platform

After the demolition of the disputed structure and in terms of the order of the High

Court dated 5 March 2003, excavation was partly carried out in ninety trenches.

Parts of four trenches in the southern area were under the raised platform. Here

the ASI team noted brick structures, floors and pillar bases below the floors and

walls of the disputed structure on the raised platform as well.

453. Chapter III of the ASI report inter alia deals with ―Stratigraphy and

Chronology‖. The report indicates that excavation has yielded a continuous

cultural sequence involving a depth of 10.80 meters. This can be divided into nine

cultural periods (explained below) on the strength of ―combined and

corroborative evidences of pottery sequence, structural remains and other datable

finds‖. The report indicates that structural activities in the excavated area had

commenced from the Kushan period and continued in the Gupta and post-Gupta

periods:

―Excavations have made it amply clear that the site had

seen successive structural activities which began from the
middle of the Kushan level at the site. The brick and stone
structures that were raised in Kushan and the succeeding
periods of Gupta and post-Gupta times have added heights to
the mound. To build further structures upon the earlier debris
the later people added a deposit of earth excavated from the
periphery of the mound, which belonged to the much earlier
cultural periods. This is true for the rest of the structural
phases also.‖

The ASI report suggested that the C14 determination of charcoal samples from

the early levels (periods I to III) provide dates commencing from the last centuries

of second millennium B.C.

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The ASI report, as stated above finds the existence of deposits of nine cultural

periods. These are:

(i) Period – I

Northern Black Polished Ware Level

This period pertains to the sixth to third century B.C. where the earliest people to

settle at the site used Northern Black Polished Ware and other associated ware

(Grey ware, Black slipped ware and Red ware) which are diagnostic ceramics of

that period. No substantial structural activity was noticed except for reed

impressions on burnt clay. The findings of the excavation are:

―Period - I (Northern Black Polished Ware Level)

....Besides the pottery this level yielded broken weights,
fragments of votive tanks, ear-studs, discs, hopscotches, a
wheel made on disc, a broken animal figurine (all in
terracotta), an iron knife (broken), glass beads, bone point,
etc. However, the most significant find from the level is a
round bezel in greenish glass with legend 'sidhe' in high relief
in Asokan Brahmi on the obverse while the reverse in plain
(Rg.No.778).‖

(ii) Period – II

Sunga Level

The Sunga Level relates to ‗circa second-first century B.C‘. During this period,

the site witnessed the first structural activities in stone and brick. The ASI report

states:

―...It is in this period that the site witnessed first structural

activity in stone and brick, as noticed in J3. The level is
represented by terracotta objects comprising human and
animal figurines, bangle fragment, ball, wheel and a broken
sealing with only 'sri' letter in Brahmi extant (Rg No.701), a

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saddle quern and part of a lid in stone, a glass bead, a hairpin

and an engraver on bone and an ivory dice, besides the
period pottery of the level.‖

(iii) Period –III

Kushan Level

This period which relates to circa first-third century A.D. has resulted in the

finding of rich deposits of pottery. In one of the trenches, a huge kiln was noticed

at the lower levels. The findings of the excavation are as follows:

―In trench G7, however, the limited area yielded animal and
human figurines, bangle fragment and a portion of votive tank
all in terracotta, a hairpin in bone, a bead in glass and an
antimony rod in copper. In trench 15, though the regular
stratified deposit was not encountered in the operation area,
the eastern section yielded a record of regular deposition and
almost all the structural activity at the site. A massive brick
construction, running into 22 courses above excavated
surface, is noticed at the bottom of J5-J6 which belongs to
this period. The Kushan period certainly gave a spurt to
construction of structures of large dimensions which attest to
their public status. Besides, the same trench provided
evidence for a stone structure, nature of which is not very
clear.‖

(iv) Period –IV

Gupta Level

This period pertains to the fourth-sixth century A.D. which is attested by the

presence of terracotta figurines and a copper coin. The ASI report indicates:

―Almost 2 m thick deposit, represented by layer 7 and 8 G7,

by layers 9 and 10 in J5-J6 and layers 7 and 8 in trenches E8
and F8, above the remains of the preceding period belong to
Gupta times (circa fourth-sixth century A.D.), the presence of
which is attested mostly by terracotta figurines typical of the
period and of course by a copper coin (3.75 m. layer 8, G7,

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Rg. No.1030) bearing image of king on the obverse and

garuda standard in upper register and legend 'sri
chandra(gupta)' in lower register on the reverse.‖

(v) Period –V

Post Gupta – Rajput Level

This period pertains to the seventh to tenth century A.D. The excavation

pertaining to the above period has resulted in the unearthing of a circular

subsidiary shrine belonging to the late level of this period:

―The period is marked by the appearance of the knife-edge

bowls and other types which belong to the period from
seventh to tenth century A.D. In this period also structural
activities were witnessed in numerous phases in trench E8
and F8. A circular subsidiary shrine belonging to the late level
of this period was exposed in trench E8-F8 (Fig 24 and 24A).
Among the pottery assemblage Kushan type is more frequent
than the period pottery.‖

(vi) Period VI

Medieval –Sultanate Level

This period pertains to the eleventh–twelfth century A.D. The findings of the

excavation are:

―A thick floor made of brick-crush floor appears, on the

circumstantial evidence, to have been attached to a wide and
massive looking north-south oriented brick wall (No.17)
markedly inclined to east (noticed in trenches D7 and E2-E1,
F1 and ZF) which was the major structural activity of the
period (circa eleventh-twelfth century A.D.). Another wall in
same orientation has been noticed in G2 and ZG1 at a depth
of 180 cm which is sealed by layer 6A in G2. The red
brickcrush floor is noticed extending in a large area of the
mound covering trenches E8, F8, G7, J5 & J6 with varying
thickness. At the same level, in trench G5, calcrete stone
blocks have been noticed in formation which may be of large
dimension.‖
(vii) Period –VII

Medieval Level
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This period lasted from the end of the twelfth to the beginning of the sixteenth

century A.D and comprises of structural activities in three sub-periods - A, B and

C. In sub-period A, the excavation shows:

―..In sub-Period-A, a massive wall (no.16) in north-south

orientation was constructed, the foundation trench of which
cuts the red brick-crush floor of the previous period. A new
style of construction is noticed in this period, however, in a
limited area. Level of the mound was raised considerably by
the material excavated from the vicinity to lay a floor of lime
mixed with fine clay and brick-crush, over which a
columnbased structure was built (evidence of pillar bases are
available in trenches F9, F8 and G7).‖

For sub-period-B, the ASI report indicates:

―There is a circular depression specially made by cutting the

large brick pavement (Pl. 67), having the diameter of 1.05 m.
with a rectangular projection of 0.46x0.32 m towards west. It
is interesting to note that the circular depression comes in the
centre of the pavement if the central part is calculated on the
basis of extant length of wall 16 or wall 17 and longitudinal
length of the alignment of pillar bases from north to south.
Thus, suggesting it as a place of importance. Besides, the
circular depression faces the central part of the disputed
structure over which ‗Ram Lalla‘ is enshrined. Bricks
measuring 50x50x8 to 10 cm. 50x47x8 and 40x40x6 cm were
used in the pavement as specially made floor tiles.‖

The above finding for sub-period B reports the existence of a circular depression,

its centrality indicating it to be a place of importance. It is also stated that the

circular depression faces the central part of the disputed structure over which the

deity is enshrined.

In sub-period C, there is a finding of foundations to support pillars or columns:

―In this deposit foundations to support pillars or columns

were sunk which were overlaid with a 4-5 cm thick floor which
had a grid of square sandstone bases for pillars projecting
out, only a few still survive. Floor around most of the pillar
bases is found broken with pillar base foundations in much
disturbed condition.‖

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(viii) Period –VIII

Mughal Level The

report indicates:

―The floor of the previous period (Period VII-C) is found cut

by the stone black (mostly calcrete) foundations of the
disputed structure (mosque). However, the north-south wall of
the Period VII-A is retained as foundation for the back wall.
Inside the foundation and in the immediate front part a layer
of rammed earth is laid which is then overlaid with rammed
deposit of grey coloured kankars and a thin layer of ashy
deposit which contains riverine shells burnt white. The total
deposit accounts for a thickness of about 20-25 cm, which
acts as a soling for the first floor of the Mughal period inside
as well as outside of the structure to a short distance to the
east forming an apron floor.‖

(ix) Period –IX

Late and Post Mughal Level

In this period, two successive floors were laid, another platform was added to the

east forming a terrace and subsequently two successive enclosure walls were

erected. Moreover:

―In this period to attaché a terraced platform to the east of

the existing one, deposits of the earlier periods were
excavated and removed, in which the floor of the period VII-C
was cut and destroyed from the eastern area. Slightly later, a
partition wall was added attached to the first terrace platform
along with a small step in the centre. And then was added
another floor inside the structure which ran out on the now
enclosed platform and abutted to the partition wall.
Sometimes later an enclosure wall was added to the entire
complex without any foundation which rested over the
existing floor, which was provided with two gates, larger one
to the north and a smaller one to the east. Sometimes around
this period dead bodies were buried in the north and south of
the disputed structure which have cut the top floors and which
are sealed by layer
1.‖
454. Chapter IV of the ASI report deals with structures. A significant aspect of this

Chapter is a section titled ―The Massive Structure Below the Disputed

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Structure‖. The relevant findings are extracted below:

―From the excavation it could be inferred that there were

seventeen rows of pillar bases from north to south, each
row having five pillar bases. Due to area restriction and
natural barrier, the pillar bases in the central part
occupied by the make-shift structure on the raised
platform could not be located. Out of excavated fifty pillar
bases only twelve were completely exposed, thirty five
were partially exposed and three could be traced in
sections only. A few pillar bases were noticed during earlier
excavation after which a controversy took place about their
association with different layers and their load bearing
capacity. The present excavation has set aside the
controversy by exposing the original form of the bases having
calcrete and stone blocks arranged and set in a proper
manner over a brick foundation and their arrangements in row
including their association with the top floor of the structure
existing prior to the disputed structure.

The seventeen rows of pillar bases were constructed along

the north-south running brick wall (wall 16) on the west. The
distance of the first pillar base in each row from the wall
ranges from 3.60 to 3.86 m. Seventeen rows of pillars bases
could be categorized in three different groups on the basis of
north-south distance which varies in different groups whereas
east-west distance from centre to centre of each pillar base
vary from 2.90 to 3.30m. Six rows of the pillar bases on north
and south were at the equidistance which ranges from 3 to
3.30 m. Central five rows consisting twenty five pillar bases
show different equations – two rows on either sides of the
central row were placed approximately at the distance of 5.25
m. whereas the other two rows on either side of these three
rows were at the distance of 4.20-4.25 m. From this it could
be easily concluded that the central part of the pillared
structure was important and special treatment was given to it
in architectural planning.

In the southern area only one decorated sand stone was

found over a pillar base while in the northern area many of
the pillar bases were found topped by a plain sand stone
block set over the brick bat foundation having calcrete blocks
over them (Pl. 36). The plain sand stone block was found in
many of the cases having a stone encasing from all the four
sides, possibly to avoid shifting of the pillar placed over the
block (Pls 37-38). Top parts of stone encasings had a
projection in the middle. In the northern area at a few places
where the stone blocks were not found sand stone slabs were
found over the calcrete blocks of the brick bat foundation of
the pillar bases. The decorated octagonal sand stone

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block on pillar base 32 having floral motif on the four

corners in trench F7 in the southern area is the unique
example at the site (Pl. 39) which definitely belongs to the
twelfth century A.D. as it is similar to those found in the
Dharmachakrajina Vihara of Kumaradevi at Sarnath (Pl.
40) which belongs to the early twelfth century A.D.‖
(Emphasis supplied)

The ASI report contains a detailed analysis of as many as 47 pillars bases.

The Circular shrine

The ASI report contains an analysis of an east facing brick shrine which was

exposed as a result of the excavation. The report notes:

―A partly damaged east facing brick shrine, structure 5

(Pls 59-60, Fig 17,24 and 24A) was noticed after removal of
baulk between trenches E8 and F8. It is a circular structure
with a rectangular projection in the east, the latter having
been already visible before the removal of the baulk. The
northern part of the circular part has retained its lower eight
courses above the foundation of brick-bats while the southern
half is damaged by constructional activity of the subsequent
phase whose brick-bats have damaged the structure upto its
working level. The structure was squarish from the inner
side and a 0.04 m wide and 0.53 m long chute or outlet
was noticed on plan made through the northern wall upto
the end where in the lower course a 5.0 cm thick brick cut
in ‗V‘ shape was fixed which was found broken and
which projects 3.5 cm outside the circular outer face as a
pranala to drain out the water, obviously after the
abhisheka of the deity which is not present in the shrine now.
The entrance of the structure is from the east in the form of a
rectangular projection having a twelve course of bricks
interlocked with the circular structure and having a 70x27x17
cm calcrete block fixed in it as the threshold. Two sizes of
bricks were used in the construction of the shrine measuring
28x21xx5.5 cm and 22x18x5 cm. The rectangular projection
of entrance is 1.32 m in length and 32.5 cm projected towards
east.‖ (Emphasis supplied)

The report infers the existence of a pranala to drain out water, ―obviously after

the abhisheka of the deity which is not present in the shrine now‖. The brick
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shrine which has been found as a result of the excavation is stated to be similar to

the findings of the excavation carried out by ASI at Sravasti and at Rewa. On a

comparative analysis, ASI has inferred that the circular shrine can be dated to

circa tenth century A.D.

Summary of results

455. A Summary of results is contained in Chapter X of the ASI report. The results

of the excavation are extracted below:

―The Northern Black Polished Ware (NBPW) using people

were the first to occupy the disputed site at Ayodhya during
the first millennium B.C. Although no structural activities were
encountered in the limited area probed, the material culture is
represented by terracotta figurines of female deities showing
archaic features, beads of terracotta and glass, wheels and
fragments of votive tanks etc. The ceramic industry has the
collection NBPW, the main diagnostic trait of the period
besides the grey, black slipped and red wares. A round signet
with legend in Asokan Brahmi is another important find of this
level. On the basis of material equipment and 14 C dates this
period may be assigned to circa 1000 B.C. to 300 B.C.

The Sunga horizon (second-first century B.C.) comes to the

next in the order of the cultural occupation at the site. The
typical terracotta mother goddess, human and animal
figurines, beads, hairpin engraver etc. represent the cultural
matrix of the level. The pottery collection includes black
slipped, red and grey wares etc. The stone and brick structure
found from the level mark the beginning of the structural
activity at the site.

The Kushan period (first to third century A.D) followed the

Sunga occupation. Terracotta human and animal figurines,
fragments of votive tanks, beads, antimony rod, hair pin,
bangle fragments and ceramic industry comprising red ware
represent the typical Kushan occupation at the site. Another
important feature of this period is the creation of large sized
structures as witnessed by the massive structure running into
twenty-two courses.

The advent of Guptas (fourth to sixth century A.D) did not

bring any qualitative change in building activity although the

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period is known for its classical artistic elements. However,

this aspect is represented by the typical terracotta figurines
and a copper coin with the legend Sri Chandra (Gupta) and
illustrative potsherds.

During the Post-Gupta-Rajput period (seventh to tenth century

A.D.) too the site has witnessed structural activity mainly
constructed of burnt bricks. However, among the exposed
structures, there stands a circular brick shrine which speaks
of its functional utility for the first time. To recapitulate quickly,
exteriorly on plan, it is circular whereas internally squarish
with an entrance from the east. Though the structure is
damaged, the northern wall still retains a provision pranala,
i.e. waterchute which is a distinct feature of contemporary
temples already known from the GangaYamuna plain.

Subsequently, during the early medieval period

(eleventhtwelfth century A.D.) a huge structure nearly
50 ...north-south orientation was constructed which seems to
have been short lived, as only four of the fifty pillar bases
exposed during the excavation belong to this level with a brick
crush floor. On the remains of the above structure was
constructed a massive structure with at least three structural
phases and three successive floors attached with it. The
architectural members of the earlier short lived massive
structure with ...and other decorative motifs were reused in
the construction of the monumental structure having a huge
pillared hall (or two halls) which is different from residential
structures, providing sufficient evidence of a construction of
public usage which remained under existence for a long time
during the period VII (Medieval-Sultanate level - twelfth to
sixteenth century A.D.). It was over the top of this
construction during the early sixteenth century, the
disputed structure was constructed directly resting over
it. There is sufficient proof of existence of a massive and
monumental structure having a minimum dimension of
50x30 m in north-south and east-west directions
respectively just below the disputed structure. In course
of present excavations nearly 50 pillar bases with brick
bat foundation, below calcrete blocks topped by
sandstone blocks were found. The pillar bases exposed
during the present excavation in northern and southern
areas also give an idea of length of the massive wall of
the earlier construction with which they are associated
and which might have been originally around 60 m (of
which the 50 m length is available at present). The centre
of the central chamber of the disputed structure falls just
over the central point of the length of the massive wall of
the preceding period which could not be excavated due
to presence of Ram Lala at the spot in the make-shift
structure. This area is roughly 15x15m on the raised

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platform. Towards east of this central point a circular

depression with projection on the west cut into the large sized
brick pavement signify the place where some important object
was placed. Terracotta lamps from the various trenches and
found in a group in the levels of Periods VII in trench G2 are
associated with the structural phase.
In the last phase of the period VII glazed ware shreds make
their appearance and continue in the succeeding levels of the
next periods where they are accompanied by glazed tiles
which were probably used in the original construction of the
disputed structure. Similarly is the case of celadon and
porcelain shreds recovered in a very less quantity they come
from the secondary context. Animal bones have been
recovered from various levels of different periods, but skeletal
remains noticed in the trenches in northern and southern
areas belong to the Period IX as the grave pits have been
found cut into the deposition coeval with the late disputed
structures and are sealed by the top deposit.
In the meanwhile to observe that the various structures
exposed right from the Sunga to Gupta period do not speak
either about their nature or functional utility as no evidence
has come to approbate them. Another noteworthy feature is
that it was only during and after Period IV (Gupta level)
onwards upto Period IX (late and post Mughal level) that the
regular habitational deposits disappear in the concerned
levels and the structural phases are associated with either
structural debris or filling material taken out from the adjoining
area to level the ground for construction purpose. As a result
of which much of the earlier material in the form of potter,
terracottas and other objects of preceding periods, particularly
of Period 1 (NBPW level) and Period III (Kushan level) are
found in the deposits of later periods mixed along with their
contemporary material. The area below the disputed site
thus remained a place for public use for a long time till
the Period VIII (Mughal level) when the disputed structure
was built which was confined to a limited area and
population settled around it as evidenced by the increase
in contemporary archaeological material including
pottery. The same is further attested by the conspicuous
absence of habitational structures such as
housecomplexes, soakage pits, soakage jars, ring wells,
drains, wells, hearths, kilns or furnaces etc from Period
IV (Gupta level) onwards and in particular from Period VI
(Early Medieval-Rajput level) and Period VII (Medieval-
Sultanate level).‖ (Emphasis supplied)

In regard to the dating of the findings, the report indicates that the earlier human

activities trace back to thirteenth century B.C.:

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―…earliest remains may belong to the thirteenth century

B.C. which is confirmed by two more consistent C14 FROM
THE NBPW level (Period I), viz. 910 = 100 B.C. and 880 =
100 B.C). These dates are from trench G7. Four more dates
from the upper deposit though showing presence of NBPW
and associated pottery are determined by Radio-Carbon
dating as 780=80 B.C., 710=90 B.C., 530=70 B.C. and
320=80 B.C. In the light of the above dates in association with
the Northern Black Polished Ware (NBPW) which is general
accepted to be between circa 600 B.C. to 300 B.C. it can be
pushed back to circa 1000 B.C. and even if a solitary date,
three centuries earlier is not associated with NBPW, the
human activity at the site dates back to circa thirteenth
century B.C. on the basis of the scientific dating method
providing the only archaeological evidence of such an early
date of the occupation of the site.‖

Finally, the ASI concludes by indicating that:

―Now, viewing in totality and taking into account the
archaeological evidence of a massive structure just
below the disputed structure and evidence of continuity
in structural phases from the tenth century onwards upto
the construction of the disputed structure along with the
yield of stone and decorated bricks as well as mutilated
sculpture of divine couple and carved architectural
members including foliage patters, amalaka, kapotapali
doorjamb with semi-circular pilaster, broken octagonal
shaft of black schist pillar, lotus motif, circular shrine
having pranala (waterchute) in the north, fifty pillar bases
in association of the huge structure, are indicative of
remains which are distinctive features found associated
with the temples of north India.‖
(Emphasis supplied)

456. Numerous objections have been urged to the ASI report and will be

considered. The report indicates that the post Gupta period commencing from the

seventh to the tenth century A.D. witnessed significant structural activity at the

site. The report states that this activity has uncovered the existence of a circular

brick shrine with a circular exterior with an entrance from the east. ASI has

concluded that the northern wall of the shrine contains a pranala, i.e. a water

chute, which it opined to be a distinctive feature of temples in the plains of the

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Ganges – Yamuna. The report noted that excavation pertaining to the eleventh–

twelfth century A.D. has revealed the existence of ―a huge structure‖ with a

dimension of 50 meters by 30 meters. This activity during the early medieval

period of the eleventh and twelfth century A.D. reveals the existence of nearly fifty

pillar bases. The report notes that on the remains of the above structure, there

was a massive structure constructed with at least three structural phases and

three successive floors attached with it. The architectural features of the early

structure including its decorative motifs were revised in the construction of a

―monumental structure‖ with a large pillared wall indicating evidence of a

construction for public use. The report notes that the construction of the disputed

structure during the early sixteenth century is found to have rested directly above

the earlier structure and that the centre of the central chamber of the disputed

structure is stated to fall over the central point of the length of the massive wall of

the preceding period.

Findings of the High Court on the ASI report

457. During the course of his judgment, Justice S U Khan did not place any

reliance on the ASI report. The learned judge offered the following explanation:

―Conclusions of A.S.I. Report 2003, already quoted, are not

of much help in this regard for two reasons. Firstly, the
conclusion that there is ‗evidence of continuity in structural
phases from the tenth century onward upto the construction
of the disputed structure‘ is directly in conflict with the
pleadings, gazetteers and history books. Neither it has been
pleaded by any party nor mentioned in any gazetteer or most

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of the history books that after construction of temples by

Vikramaditya in first Century B.C. (or third or fourth century
A.D., according to some) and till the construction of the
mosque in question around 1528 A.D. any construction
activity was carried out at the site of the premises in dispute
or around that. Secondly, in case some temple had been
demolished for constructing the mosque then the
superstructure material of the temple would not have gone
inside the ground. It should have been either reused or
removed. No learned counsel appearing for any of the Hindu
parties has been able to explain this position.‖

The first reason which weighed with Justice S U Khan was that it had not been

pleaded by any of the parties that after the construction of a temple in the first

century B.C. (or third or fourth centuries A.D.) until the construction of the mosque

in the sixteenth century, any construction had been carried out at the site. The

case of the plaintiffs in Suit 5 is that the disputed structure of a mosque was

constructed after the demolition of a temple and that the mosque was constructed

at the site of the demolished temple. The purpose of the excavation which was

ordered by the High Court was to enable the court to have the benefit of a

scientific investigation by ASI. It was on the basis of this excavation that the court

would be apprised of the findings reached by ASI. To attribute to parties an act of

default in their pleadings is inappropriate for the reason that the archaeological

evidence which came before the court was as a result of the excavation which

was carried out by the ASI. Having ordered the excavation, it was necessary for

the High Court during the course of the trial to evaluate those findings. Justice S

U Khan did not do so. The second reason which has weighed with the learned

judge proceeds on the basis of a conjecture. Justice S U Khan held that it is not

conceivable that Babur or Aurangzeb would have ensured prior research to

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ascertain the exact birth-place of Lord Ram and then have a temple constructed

at the site. The purpose of the excavation was to enable the court to determine as

to whether the excavation at the disputed site suggested the existence of prior

structural activity over centuries and, if so, whether any part of it was of a religious

nature. Justice S U Khan has omitted to assess both the finding of the ASI of a

circular shrine and a construction partaking of a publicly used structure on the

foundations of which the disputed structure rested and its probative value in the

present dispute.

458. Justice Sudhir Agarwal observed during the course of his judgment that

certain undisputed facts emerge from the excavations. These were catalogued as

follows:

―(i) A lot of structural and construction activities existed at

the disputed site going back to the level of Shunga and
Kushan period.
(i) The exact number of floors, pillar bases and walls (were)
noted by ASI though objected but the very existence of
several floors, walls, and pillar bases beneath the disputed
stricture is not disputed.
(ii) The structure below the disputed structure was sought to
be explained as Kanati mosque or Idgah. There is no
suggestion that the structure below the disputed building was
of non-religious nature.
(iii) Some of the constructions or artefacts are sought to relate
to Jains or Buddhist but here also it is not the case that it was
Islamic in nature or non-religious.
(iv) Though allegations of lack of independence in
professional style etc. is sought to be supported from the
alleged misinterpretation or wrong interpretation or omission
or contradictions and discrepancies in some part of the report
but no one of ASI team, individual or group has been named
or shown to have worked in a manner lacking integrity,
independence etc. (except where two nominees of Muslim
side i.e. Dr. Jaya Menon (PW 29) and Dr. Supriya Verma (PW
32) reported creation of pillar bases in Trench G2 vide
complaints dated 21.5.2003 and 7.6.2003).‖

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Initially, the case of the Sunni Central Waqf Board was that the building in dispute

was constructed at a place on which there was no existence of a Hindu religious

structure and there was no evidence to suggest that the structure was at the

place which Hindus believe to be the birth-place of Lord Ram. Justice Agarwal

noted that when the excavation progressed there was a marked change in the

approach of the plaintiffs in Suit 4 and a new case was sought to be set up that

the structure below the disputed structure as shown in the excavation is of

Islamic origin namely, either an ‗Idgah‘ or ‗a Kanati Masjid‘. Justice Agarwal

noted that this shift in stance of the Muslim parties clearly excluded the possibility

that the structure which was found below the disputed structure was of an origin

which is not religious. The enquiry then narrowed down to whether the structure

was Islamic or non-Islamic in nature. The learned judge concluded that:

―3905. It is clear from the report that floor 4 which supports

the foundation of pillar bases was a floor of a Temple. It
cannot be the floor of Idgah or Kanati Mosque because pillars
are always absent in Idgah so that maximum persons could
be accommodated in minimum space for offering prayer.‖

459. Justice Agarwal noted that the existence of a circular shrine with its

attendant architectural features likely indicated the presence of a Shaivite shrine

and that it was not a Muslim tomb. He observed that while on the one hand, the

dimensions of the structure were too small for a tomb, a gargoyle would never

find presence in a tomb but was an integral feature of the sanctum of a Shiva

temple to drain out water poured on the Shivalingam. In that context, after

analysing the evidence, Justice Agarwal observed that PWs 29, 31 and 32 who

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were the witnesses of the plaintiffs in Suit 4 accepted that the features which were

found in the excavated shrine were of a non-Islamic origin. The evidence of PWs

29, 31 and 32, insofar as is relevant is extracted below:

(A) Dr Jaya Menon (PW-29)

―The motif of Ghat (pot) is visible on this pillar. It is true that

Ghat is also known to be as ―Kalash‖. Normally, this kind of
‗Ghat‘ on the pillar is not found in mosque.
It is correct to say that the figurines of elephant, tortoise and
crocodile – all made of terracotta, were recovered during the
excavation. Such figurines were found in more than one
trench. I know that the crocodile is the seat/vehicle of Hindu
holy river Ganga. I agree that tortoise is the vehicle of holy
river Yamuna.‖

(B) Dr Ashok Dutta (PW 31)

―As I have mentioned that the Muslim people do not believe

in the idol worship, hence there is no question of associating
terracotta figurine with the Muslim culture. So far I know and
my knowledge goes, the question of terracotta figurine to be
associated with Muslim culture does not arise‖.
―It is true that such animal figurines are not allowed to be
kept in the mosque.‖
―Makar Pranal is one of the parts of the Hindu temple
architecture. I am not very sure whether Makar Pranal has
any association with mosque or not. I have not seen any
mosque having any Makar Pranal in it.‖

(C) Dr Supriya Verma (PW-32)

―I have heard the word ‗Kalash‘. Kalash is not found in

mosque…‖
―Wall No. 16, according to me, was used as a wall prior to
the construction of the disputed structure. In this way, Wall 16
was wall of some other construction which was existing prior
to the constriction of the disputed structure.‖
―However, it is true that Wall No. 17 was constructed earlier
to Wall No. 16.‖
―I know crocodile. It is also very important for the temples. It
is called ‗Makar Mukh‘. I have not seen Makar Mukh in any
mosque…‖

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Justice Agarwal observed:

―3979. The report of the Archaeological Survey of India,

which is a report of an expert in excavation, contains all the
details including details of stratigraphy, artefacts,
periodisation as well as details of structures and walls. The
pillar bases mentioned in the report establish beyond all
doubt the existence of a huge structure. In addition to above,
existence of circular shrine, stone slabs in walls with Hindu
motifs and more particularly sign of Makar Pranal in wall No.
5 (wall of disputed structure), divine couple and other temple
materials, etc., conclusively proves the existence of a Hindu
religious structure beneath the disputed structure. It is
generally admitted by the witnesses that the excavation was
conducted as per settled norms of archaeology in presence of
parties, experts and observers and three dimensional
recording, photography, videography of each and every
trench, structure, artifacts, were done by the ASI during
excavation in presence of all concerned. Day-to-day register,
supervisor's diary and antiquity register were being regularly
maintained. 3980. There are some more objections which
we find not much of worth for the reason that the experts of
Muslim parties ultimately, realizing that structure existed
underneath the disputed building made out a new case in
their statement. However, a new stand which is not the case
of the plaintiff, not pleaded is not permissible.‖

One of the objections before the High Court was that the ASI report did not

specifically answer whether there was any pre-existing structure which was

demolished for the construction of a mosque and whether the pre-existing

structure was a temple. Answering this objection, the High Court held:

―3990. ASI, in our view, has rightly refrained from recording

a categorical finding whether there was any demolition or not
for the reason when a building is constructed over another
and that too hundreds of years back, it may sometimes be
difficult to ascertain as to in what circumstances building was
raised and whether the earlier building collapsed on its own or
due to natural forces or for the reason attributable to some
persons interested for its damage. Sufficient indication has
been given by ASI that the building in dispute did not have its
own foundation but it was raised on the existing walls. If a
building would not have been existing before construction of
the subsequent building, the builder might not have been able
to use foundation of the erstwhile building without knowing its
strength and capacity of bearing the load of new structure.
The floor of the disputed building was just over the floor of

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earlier building. The existence of several pillar bases all show

earlier existence of a sufficiently bigger structure, if not bigger
than the disputed structure then not lesser than that also.‖

After analysing the evidence, Justice Agarwal observed:

―4055. The ultimate inference, which can reasonably be

drawn by this Court from the entire discussion and material
noticed above, is: (i) The disputed structure was not raised on
a virgin, vacant, unoccupied, open land. (ii) There existed a
structure, if not much bigger then at least comparable or
bigger than the disputed structure, at the site in dispute. (iii)
The builder of the disputed structure knew the details of the
erstwhile structure, its strength, capacity, the size of the walls
etc. and therefore did not hesitate in using the walls etc.
without any further improvement. (iv) The erstwhile structure
was religious in nature and that too non-Islamic one. (v) The
material like stone, pillars, bricks etc. of the erstwhile
structure was used in raising the disputed structure. (vi) The
artefacts recovered during excavation are mostly such as are
non-Islamic i.e pertaining to Hindu religious places, even if we
accept that some of the items are such which may be used in
other religions also. Simultaneously no artefacts etc., which
can be used only in Islamic religious place, has been found.‖

Motifs on the Kasauti stone pillars

460. Evidence was produced before the High Court of the motifs on the pillars in

the disputed building. Three sets of albums containing photographs taken by the

State Archaeological Department pursuant to an order dated 10 January 1990

were produced. Dr Rakesh Tewari (OPW-14) who was the Director of the State

Archaeological Department verified the photographs. The first album contained

204 coloured photographs and was marked as paper no. 200 C1/1 -204. The

second album contained 111 black and white photographs and was marked as

paper no. 201C/1-111. The High Court annexed the photographs as Appendices

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5(A) to 5(DD) of its judgment. The photographs contain depictions of the black

Kasauti stone pillars. Several of the witnesses on behalf of the plaintiff in Suit 4

deposed during the course of their evidence in regard to these photographs.

Relevant extracts from the deposition of Farooq Ahmad (PW-3) have been

reproduced in the judgment of Justice Sudhir Agarwal. Extracts from the

testimony are quoted below:

Farooq Ahmad (PW-3):

―Idols are visible in photograph no. 57, which were not

present at that time. This photograph is also of the disputed
property but it is possible that it may have been changed
because at that time there were no idols over the pillars. An
idol is visible in the upper part of photograph no. 58 as well.
There was a black pillar at the gate, which did not have any
idol and it is possible that it may have been changed
subsequently...It is only after looking at the photograph that I
am stating that the pillars may have been changed. These
pillars have idols on their top and it is only after looking at
them that I am stating that these pillars have been changed.‖
―In photograph no. 62 there is a pillar like structure near the
grill, which has idols. This pillar is at the northern gate of the
disputed property… It is visible in white color in photograph
no. 64 as well, and the idols are also visible…The photograph
no. 65 is of the main gate. However, its pillar contained idols,
which are result of change. The photograph no. 66 is also of
the eastern side but it has idols, which are result of change.‖
―The photograph no. 72 does contain black pillars but it has
idols in upper and lower part… Similar is the position of the
two pillars of photograph no. 71. Same is with the pillar shown
in photograph on. 73. It also contains idols. The photograph
no. 74 is also similar, which has idols over pillars. This pillar
has been shown completely from all sides, which had been
fixed over there.‖
―The photograph no. 101 is also of that place, but many
changes have been made therein. The idols are also existing
and the pitchers (Kalash) are also existing.‖
―It is true that all the photographs contained in this album,
had been taken in the presence of my counsel. All these
photographs are of the disputed land and property.‖

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There were witnesses who deposed on behalf of the contesting Hindu parties.

They also spoke about the idols depicted in the photographs of the pillars. These

idols include depictions of Gods and Goddesses worshipped by Hindus such as

Hanuman, Narsimha, Ganesh and Durga. The witnesses have also deposed

about the images of a peacock, garuda and lotus. The witnesses who deposed in

this regard on behalf of the Hindu parties were DW-3/5-1-2, 17/1, B/1-1, 17/1,

20/1 and 12/1.

Coupled with the photographs is the fact that during the course of the excavation,

62 human and 131 animal figurines were found by the ASI. Justice Sudhir

Agarwal noted that it was not in dispute that no Islamic religious artefacts were

found during the excavation, while artefacts pertaining to a Hindu religious origin

were found in abundance. Among them, as the learned Judge noted, were motifs

of flowers (plates nos 51 and 62); the hood of a cobra (plate no. 129) and those

pertaining to other Gods and Goddesses in human shape (plate nos 104-112,

114-116, 118-123 and 125-126). The witnesses who supported the findings and

report of the ASI were Dr R Nagaswami (OPW- 17), Arun Kumar (OPW – 18) and

Rakesh Dutt Trivedi (OPW-19).

Objections to the ASI report

461. Ms Meenakshi Arora, learned Senior Counsel has prefaced her

submissions by formulating the following objections to the ASI report:

(i) The ASI report suffers from glaring errors and internal inconsistencies;

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(ii) The ASI report is only an opinion of an archaeologist in view of Section 45

of the Evidence Act 1872; and

(iii) Archaeology is an inferential science which renders the report a weak

account of evidence.

Elaborating the third submission, Ms Arora submitted that archaeology is a social

science as distinct from a natural science. Archaeology, in her submission, is not

precise or exact as distinguished from the natural sciences which are based on

verifiable hypotheses. Archaeology, the learned Senior Counsel urged, is based

on drawing inferences in the context of what is found in the course of excavation

and does not yield verifiable conclusions.

Ms Arora urged the following additional objections with respect to the ASI report:

(i) No witness was called to prove the ASI report;

(ii) No finding has been recorded by the ASI on whether there was a

preexisting temple which was demolished for the construction of a mosque;

(iii) The Summary of results recorded in the conclusion of the report is not

attributed to any specific author unlike the individual chapters; and

(iv) The report does not indicate whether any meetings were held between the

members of the team responsible for undertaking the excavation activity. If

they did, the notes of the team meeting should have been furnished.

Subsequently, during the course of his submissions on the scope of the challenge

to the report, Dr Rajeev Dhavan, learned Senior Counsel appearing for the

plaintiffs in Suit 4 submitted that whether the Summary of results has been signed

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is a futile line of enquiry because it only goes to the authenticity and authorship of

the report. Dr Dhavan fairly submitted that the authorship of the ASI report cannot

be questioned since there is no dispute that it is attributed to the ASI and was

submitted in pursuance of the directions of the High Court. In view of the

submission, the doubt raised earlier by Ms Arora on the authorship of the

Summary of results is set at rest. The report has been co-authored by B R Mani

and Hari Manjhi. The report emanates from the ASI to whom the task was

entrusted by the High Court. There being no dispute about the authorship, origin

or authenticity of the report, we find no substance in the objection that was raised

by Ms Arora on that count.

Merits of the objections

462. The objections which have been addressed against the ASI report by Ms

Arora, learned Senior Counsel have been elaborated in Volume A-91 of the

written submissions titled as ―Stratigraphy / Periodisation, Pillar Bases,

Walls,

Circular Shrine, Divine Couple & Other Artefacts, Glazed Ware & Glazed

Tiles; Animal Bones‖. The preliminary submissions are:

(i) ASI did not properly mark the soil layers on excavation;

(ii) ASI failed to maintain accurate records of the recovery of artefacts from

specific layers and lost the context;

(iii) Though, the bones found in excavation could have been subjected to

carbon dating and Paleo-Botanical studies to arrive at better estimates of

chronology, only charcoal samples were sent for carbon dating;

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(iv) Though, ASI had assured the High Court in its interim report that it would

collect samples of soil and mortar (for carbon dating), pottery (for

thermoluminescence), grains and pollen (for paleo-botanical studies) and

bones (for study of faunal remains), this was not done;

(v) The High Court had issued directions to the ASI to maintain a register for

accurate recording of recovery of artefacts from each layer; and

(vi) ASI prepared and submitted its report in 15 days in a hurried manner.

463. ASI had to conduct a complex exercise. Its excavation was time bound. The

excavating team had to work its way around a make-shift temple without affecting

the worship of the deity. The trenches had to be arranged with care. The

difficulties which ASI encountered were numerous. Its team excavated in the glare

of publicity, in the presence of parties or their representatives. The report notes

the unusual circumstances which it faced in the course of the excavation:

―a. In planning the excavation, it was decided to adopt the

latest technique of layout of trenches where limited spaces
are available and therefore in place of general practice of
layout of 10 x 10m. squares divided four quadrants of
4.25x4.25m
b. On the directions of the Hon‘ble High Court,
Archaeological Survey of India has excavated ninety trenches
in a limited time of five months soon after which the
excavation report is required to be submitted within fifteen
days. This is an unprecedented event in the history of one
hundred and forty two years of the existence of the Survey
c. …Thus the time available for their documentation,
study photography, drawing and chemical
preservations was limited to just a few hours only and
that too not in the case of material recovered from the
trenches towards closing of the work for the day…
Work was often affected and delayed due to
formalities involved in security checks and such other
administrative requirements…

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d. Working condition worsened at the onslaught of the

monsoon from June onwards when the entire site was
covered with multi-colored waterproof streets creating
heat and humidity besides total darkness in a number
of deep trenches. Monkeys started damaging the
sheets as a result of which several layers of the
sheets were spread over bamboo and wooden poles.
They created further darkness…Much difficulty was
felt for the stratigraphical observation particularly for
determining layers. These factors slowed the process
of ongoing work.‖

Ms Arora urges that these difficulties led to errors. The manner in which ASI

carried out ―stratigraphy-periodisation‖ was questioned before the High Court.

Justice Sudhir Agarwal while rejecting the objections observed:

―3846. From the statement of the six expert witnesses

produced on behalf of plaintiff (Suit-4), we find that all of them
are not unanimous in saying that the entire stratigraphy or
periodization made by ASI is bad or incorrect or suffers with
such material illegality or irregularity that the same deserves to
be rejected, which… ultimately may result in rejection of the
entire report itself. Their statements are also
contradictory, vague, confused and based on…conjectures.
3863… On the contrary, most of them admit that
determination of stratigraphy/chronology can be done in one
or more method which are well recognized and they are… (1)
dynasty wise, (2) century wise and (3) layer wise, and the ASI
has followed all the three systems.‖

The High Court observed:

―3979. The report of the Archaeological Survey of India,

which is a report of an expert in excavation, contains all the
details including details of stratigraphy, artifacts, periodisation
as well as details of structures and walls.‖

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464. In the course of analysing the ASI report, it is important to bear in mind

the criticism levelled on the methodology adopted by and the findings recorded by

ASI. Taking them into consideration will be an important evaluative technique for

this Court to deduce whether the objections, if found to be valid, are of such a

nature as would detract wholly from the utility of the report. Alternatively, this

Court may have to consider a more nuanced perspective under which the

deficiencies shown to exist in the report can lead to a realistic assessment of the

conclusions based on probability, relevance and inconsistency. The judgment

must deal with the basic question whether the findings of ASI have relevance to

the determination of title.

465. Ms Arora has highlighted the oral testimony of R C Thakran (PW- 30),

who assailed the ASI report. PW – 30 noted that periods VI to VII of Chapter III

titled ―Stratigraphy and Chronology‖ were subsequently altered in the

‗Summary of results‘. Initially at pages 38 to 41 of the report, the nomenclature of

periods V, VI and VII is as follows:

―Period V : Post-Gupta-Rajput, 7th to 10th Century

Period VI: Medieval – Sultanate, 11th-12th Century
Period VII: Medieval, 12th to 16th Century.‖

PW-30, however draws attention to the fact that in the Summary of results the

above nomenclature is revised to read as follows :

―Period V : Post-Gupta-Rajput, 7th-10th century

Period VI: Early medieval, 11th-12th century
Period VII: Medieval-Sultanate, 12th-16th century.‖

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The above inconsistency which has been highlighted carefully by Ms Arora must

be borne in mind.

According to PW-30, the transfer of the Medieval - Sultanate period from period

VI to VII has ―the advantage‖ of ignoring Islamic period materials like glazed

ware or lime-mortar by removing them arbitrarily from period VI levels to those of

period VII so that their actual presence in those levels does not pose a challenge

to ASI in placing the construction of an alleged ―massive‖ or ―huge‖ temple in

period VI.

On the aspect of ‗periodisation-stratification‘, Jayanti Prasad Srivastav (DW-20/5)

who was formerly a Superintending Archaeologist with ASI stated:

―…However I agree with the opinion of the ASI, which is

mentioned in the chart prepared by them at page 37-A, where
they have assigned floor 4 and 5 to the early Medieval
Sultanate period. On page 37-A in the chart the ASI has
mentioned early Medieval Sultanate period whereas at page
40 they have mentioned Medieval period. To my mind it
appears that there is difference between the two, but I cannot
clarify the same.
Q. Is it correct to say that the term ―early Medieval
Sultanate‖ period indicated by light green colour in the chart
at page 37-A is no other period than the period described as
period VI (Medieval Sultanate level) of 11th – 12th Century on
page 40 of ASI report, Vol. I
A. Since the term ―early Medieval‖ has got a definite
meaning in the chronological sense, I cannot equate it with
Medieval-Sultanate level lightly, hence the
excavators, who got this chart prepared are required to
clarify the situation before any conclusion is drawn by us.‖
(Emphasis supplied)

The highlighted excerpts from the answer of the witness emphasise the

importance of a clarification being sought from the ASI on the classification which

it adopted. This precisely is one of the difficulties which the objectors must
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confront. If a clarification was necessary (as the witness acknowledges), it was

but appropriate that under Order XXVI Rule 10(2), a request should have been

addressed to the court for the examination of an appropriate witness from ASI.

This was not done.

Objections as to Pillar bases

466. The ASI report states that:

―From the excavation it could be inferred that there were

seventeen rows of pillars from north to south, each row
having five pillar bases.‖
On the other hand it admits that: ―Out of excavated fifty pillar
bases only twelve were completely exposed, thirty five were
partially exposed and three could be traced in sections only. A
few pillar bases were noticed during earlier excavation after
which a controversy took place about their association with
different layers and their load bearing capacity.‖

Ms Arora submitted that the so-called pillar bases could not either have formed a

part of or supported the alleged massive structure /temple as claimed by the ASI

for the following reasons:

(i) During the excavation, the ASI identified different layers belonging to

different periods. Within the different layers, it identified the presence of

four different floors which are marked by the existence or presence of

clearly demarcated floors of lime-surkhi or surkhi. Admittedly, the floors are

at different levels, floor 1 being the level of the demolished mosque and

floors 2, 3 and 4 being below it at different levels as is illustrated in the

report. Given that the alleged pillar bases have been found in different

floors or cutting through different floors, it is evident that these pillar bases

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have been constructed at different time periods. Hence, the so-called pillar

bases could not have contemporaneously formed part of a single

structure, let alone a purportedly massive structure;

(ii) There are discrepancies and variations in the number of alleged pillar

bases found on different floors in different parts of the ASI Report. The

isometric view in Figure 23A contains a number of imagined or conjectured

pillar bases which have not even been exposed. Therefore, the claim of a

massive structure is an unfounded hypothesis as the exact number of pillar

bases is not known;

(iii) In any case, the so-called pillar bases are not in alignment as revealed

from actual measurements and distances (admitted by DW-20/5 and

OPW-17, expert witnesses who deposed in support of the ASI Report).

The pillar bases are at different distances from the thick western wall.

Further, the shapes and sizes of these purported pillar bases vary from

elliptical to circular to square to rectangular to irregular, and have differing

dimensions. This not only shows that they were built in different time

periods but also that they could not have comprised the supporting

framework of any massive structure or temple. Furthermore, none of these

pillar bases have been found in association with any pillar; and

(iv) Given the nature of the so-called pillar bases as exposed by ASI, which

were mostly made of brick-bats, they could, at best, have supported only

wooden pillars on them (as admitted by DW-20/5, an expert witness who

testified in support of the ASI Report). Such wooden pillars could not have

borne the heavy load of a massive structure.

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The above objections are sought to be established on the basis of evidence under

the following heads of the submissions of counsel:

(i) Pillar bases do not belong to the same floor

Jayanti Prasad Srivastav (DW 20/5); Arun Kumar Sharma (OPW 18); Ashok

Datta (PW 31); and Dr Shereen Ratnagar (PW 27) stated that all the pillar bases

do not belong to the same floor. OPW 18 stated that 46 pillars belong to floor 3 of

period VII (twelfth century A.D) and 4 pillars belong to floor 4 (eleventh century

A.D.). PW 31 stated that some of the pillar bases found in the northern part of the

mound belonged to a different elevation and structural activity. PW 27 stated that

the pillar bases do not belong to the stratum.

(ii) Pillars and pillars bases are conjectural

R Nagaswami (OPW 17), Jayanti Prasad Srivastava (DW 20/5) and Ashok Datta

(PW 31) claimed during the course of their examination that the finding that there

were 17 rows of pillar bases with five in each row is an inference since all the 85

pillar bases have not been excavated.

(iii) The pillar bases are not in alignment

R C Thakran (PW 30), Ashok Datta (PW 31) and Dr Supriya Verma (PW 32)

stated that the pillar bases were not in exact alignment as would be expected in a

pillared hall.

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(iv) Pillar bases are of different sizes and shapes

Jayanti Prasad Srivastava (DW 20/5) stated that pillar base No. 42 (43X120X28

cm.) was the smallest in size while the largest is pillar base No. 35 (170X160X38

cm).

(v) Pillars /Pillar bases were not load bearing

R Nagaswami (OPW 17) stated that the pillars which were used in the pillar bases

were probably of wood and not stone – such a pillar could bear a load of a tiled

roof but not of a huge superstructure. Ashok Datta (PW 31) stated that the so-

called bases are not pillar bases but are actually brick-bat deposits. PW 27, PW

30 and PW 32 also deposed that the pillar bases and the pillars were not of a load

bearing character.

Objections as to walls

467. The following objections were addressed to the ASI report before the High

Court in regard to the presence of the excavated walls:

―A medieval temple in classical style would have had a

central portion with thick internal walls to support a high
superstructure.
The key plan of structures, in Trench H1, shows two lengths
of a wall or two narrow walls, each less than a meter long,
with a gap of about 70 cm. This depiction in the plan and the
one line is all the information given about this ‗entrance‘.‖

Dealing with the objections, the High Court returned the following findings:

―3926. During excavations, in all 28 walls were traced as

shown in Fig. 3A out of which wall no. 1 to 15 are either

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contemporary to the disputed structure or belong to disputed

structure. Walls no. 16 to 28 are earlier to the disputed
structure and were found underneath the disputed structure...
...
3928. The statements of Experts (Archaeologists) of plaintiffs
(Suit-4) in respect to walls and floors have already been
referred in brief saying that there is no substantial objection
except that the opinion ought to be this or that, but that is also
with the caution that it can be dealt with in this way or that
both and not in a certain way. In other words on this aspect
witnesses are shaky and uncertain. We, therefore find no
substantial reason to doubt the report of ASI in this respect.‖

Ms Arora has raised the following objections with respect to the walls:

(i) The inner walls (walls 18A, 18B, 18C and 18D) could not have been

load bearing because they are too narrow, only two to three courses

high and built from brick-bats. Wall 16 is 1.77m wide whereas walls

18A, B, C and D are relatively thin;

(ii) Thicker western walls are a feature of mosque construction;

(iii) Wall 16 could only have been the foundation of the Babri mosque; and

(iv) According to Jayanti Prasad Srivastava (DW 20/5), wall 16 was built

around 1130 A.D. when a pillared hall was erected in front of the

shrines. After construction of wall 17, the structures standing below floor

3, towards east of wall 17, got protected from flood and to further

strengthen it, wall 16 was constructed.

Objections as to circular shrine

468. The High Court noted the following objections in regard to ASI‘s findings

about the existence of a circular shrine:

―1.Erroneous to compare structure with certain temple

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structures and not with circular walls & buildings 2.

No object of Hindu worship found on this layer
3. Surviving wall as per ASI‘s drawings makes only a quarter
of circle – such shapes are fairly popular in walls of Muslim
construction
4. Nothing found in the structure in the way of image or
sacred piece that can be called a ―shrine‖
5. Shrine could have been a stupa belonging to the 6th or 7th

century AD.‖

While rejecting these objections, the High Court recorded the following findings:

―3931. 'Circular Shrine', more virtually its existence, that was

found by ASI has been admitted by most of the Experts
(Archaeologist) of Muslim parties though a reluctant attempt
has been made for diverting the identity by suggesting that it
may be a "Buddhist Shrine" or a tomb of erstwhile Islamic
religious structure. PW-30 has categorically admitted it on
page 15 and has said that his statement in para 14 of the
affidavit was not after looking to the shrine at the spot but on
the basis of its photo only.
3935. During excavation at the disputed site between
trenches E-8 & F-8 a circular structure of burnt bricks facing
east was recovered, commonly termed as "circular shrine",
detailed at page 70 to 72 of report, volume 1, and shown in
figure 17, 24, 24A, and plates 59, 60 & 62 (volume 2) of the
report. The bricks used here are of two sizes: 28x21x5.5 cm
and 22x18x5 cm. The bonding material was mud mortar. On
its eastern side, there is a rectangular opening, 1.32 m in
length and 32.5 cm in width, which was the entrance of the
structure. A calcrete block, measuring 70x27x17 cm, has also
been found here, fixed, obviously, as the door-sill.
This was an independent miniature shrine. The architectural
features suggest that, that it was a Shiva shrine.
3939. It is unthinkable that inspite of these clear features
of Shiva shrine, the objectors are identifying the same as a
Muslim tomb.
3940. Secondly, it is too small a structure for a tomb,
from inside it is only 4.4 ft. square. Neither could it
accommodate a grave in its interior, nor a Qiblah-Mihrab on
its western wall ;
Qiblah was an integral and essential part of tomb-structure
during the Sultanate period (1192-1526 A.D.) as is illustrated
by numerous examples all over northern India.
3941. Thirdly, there is no trace of an arch required for
constructing dome over the tomb. There are no hook-shafts to
bear and no structural trace to suggest any lateral thrust of
the mihrab. It may be noted that the sub-structure of the
mihrab is built massively on the edges of the four corners, to
counter the lateral thrust. One wonders, if it was a tomb

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without any arch or dome, and without even a grave? 3942.

Thus, on the one hand the dimension of this structure are too
small for a tomb and on the other the gargoyle was never in
tombs while it was an integral feature of the sanctum of Shiva
temples to drain out water poured on the Sivlinga. 3943.
Shrine is a holy place where worship is performed. It is a
structure where holiness is enshrined. Denial for the sake of
denial should not be allowed. "No evidence to make this
structure a shrine" and "a sheer figment of imagination and a
conjecture without any evidentiary basis", such comments
grossly lack technical acumen and clearly show the dearth of
logical thinking. These themselves are mere arguments
lacking "evidentiary basis". These and many like arguments
show the 'ostrich attitude' of the plaintiff.
3952. In the overall view we find no reason to doubt the
findings of ASI on this aspect also and the objections
otherwise are accordingly rejected.‖

Ms Arora, learned Senior Counsel has raised the following objections with respect

to the findings in the report on the circular shrine:

(i) The structure pertains to seventh to tenth century A.D. (post Gupta

Rajput period) and hence, would have nothing to do with the alleged

Ram Janmasthan temple which is of twelfth century A.D.;

(ii) The excavation report shows pillar bases lying right above the shrine

which refutes the claim that the circular shrine belonged to the same

time period as that of the twelfth century Hindu structure; and

(iii) There is no evidence of any water residue.

Divine couple and other artefacts

469. The following objections were placed before the High Court:

―Divine Couple:
1. Piece so damaged that it is undecipherable.

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2. No reason for calling it ―divine‖ given. Piece found in trench

K3-K4 and the recorded layer is ―debris‖. Thus the piece
does not come from a stratified context.
3. Octagonal Shaft: Comes from surface debris above topmost
floor (Floor 1) in Trench F3 (Pl. 140) – is of no relevance.
4. Others: Out of 383 architectural fragments only 40 came from
stratified contexts. Out of these 40, none were specific to a
temple, the 8 fragments separately mentioned (doorjamb,
amlaka, divine couple, srivatsa motif, lotus medallion etc.) are
of no significance. For example Srivatsa design is associated
with Jainism, lotus design could be Buddhist or Muslim.‖

The High Court rejected the above objections. Justice Sudhir Agarwal held:
―3958. The identification and appreciation of the excavated
material like human or animal figurines etc. is a matter of
experts. None of these eight experts (Archaeologists of
Muslim parties) claimed to be the experts in this… branch in
Archaeology. Even otherwise their stand in respect to these
finds is varying. One witness says that these finds were not at
all recovered from the layers they are claimed while others
say otherwise. We have seen photographs of many of such
artifacts and finds and in generality there is no such inherent
lacuna or perversity in the observations of ASI or other
identification which may warrant any… comment from this
Court or may vitiate their report. It is not in dispute that no
Islamic religious artefacts have been found during excavation
while the artifacts relating to Hindu religious nature were in
abundance. For some of the items, it is claimed that it can
also be used by non-Hindu people but that would not be
sufficient to doubt the opinion of ASI. Plate No.50 (Kapotpalli),
Plates No.51 and 62 (floral motifs shown in walls 16 and 17),
(Sravats) Plate No.88, Cobra hood (Nag Devta) Plate No.129
and various other Gods and Goddesses in human shape
(Plate Nos. 104, 105, 106, 107, 108, 109, 110, 111, 112, 114,
115, 116, 118, 119, 120, 121, 122, 123, 125, 126) to our mind
were quite clear and admits no doubt. Three witnesses
namely Sri Arun Kumar (OPW-18), Dr. R. Nagaswami (OPW
17) and Sri Rakesh Dutt Trivedi (OPW19) were produced who
supported the findings and report of ASI. They are retired
officers, holding senior position in ASI. Their statements are
sufficiently lengthy and extremely detailed. Since they have
supported ASI report, we have not mentioned their
statements in detail for the reason that we intended to test the
objections raised against ASI report in the light of what the
witnesses of plaintiff (Suit 4) have deposed and only when we
would have some doubt, we would refer to and compare the
statement that of OPW 17 to 19. In totality we find no
substance in the objection with respect to the figurines etc.

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and the same are accordingly rejected.‖

Besides the above objections, Ms Arora, learned Senior Counsel has raised the

following objections:

(i) Different teams of the ASI which authored various chapters of the report

arrived at inconsistent findings on the periods attributed to the artefacts;

(ii) The so-called sculpture of the ‗divine couple‘ is completely mutilated;

(iii) There is no basis for the use of the expression ―divine‖ as even the

‗alingan mudra‘ does not appear clear; and

(iv) The other artefacts such as the lotus design are not necessarily

associated with the Hindu religious structures.

Objections as to glazed ware and glazed tiles

470. A total of 647 fragments of pottery which were recovered were assigned to

nine periods as reflected below:

―Period I : 99
Period II : 73
Period III : 105
Period IV : 74
Period V : 85
Period VI : 63
Periods VII, VIII & IX : 148
TOTAL : 647.‖

Of the 647 fragments, 148 fragments have been assigned to periods VI, VIII and

IX.

Ms Arora submitted that the principal objections were that:

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(i) Glazed ware was placed in the last phase of period VII since otherwise

it would militate against a temple being made in that period;

(ii) Glazed ware is an indicator of Muslim habitation and is not found in

medieval Hindu temples; and

(iii) Two pieces of glazed wares were found in VI – indicating that the layers

were wrongfully assigned.

Objections as to animal bones

471. Ms Meenakshi Arora, learned Senior Counsel has raised the following

objections with respect to the animal bones:

(i) No study was conducted of the bones found during the excavation at

every level of the site;

(ii) The ASI report does not contain a separate chapter regarding the study

of bones and there is only a casual reference in the Summary of results,

without any understanding of the contextual relationship of the bones

recovered with the structural remains; and

(iii) Recovery of bone fragments with cut marks is a sign of animals being

utilised for food which would rule out the possibility of a temple.

The above inconsistency which has been highlighted carefully by Ms Arora must

be borne in mind.

The Code of Civil Procedure: Section 75 and Order XXVI

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472. Before dealing with the objections raised by Ms Arora both on the

preliminary aspects outlined to above and on the merits on report (which will be

set out later), the Court must form a perspective of the nature and ambit of the

investigation entrusted to the ASI by the High Court.

473. Section 75277 of the CPC empowers the court to issue commissions

―subject to such conditions and limitations as may be prescribed‖. The court

may issue a commission, among other things to hold a scientific, technical or

expert investigation. This specific provision was incorporated by Amending Act

104 of 1976 with effect from 1 February 1977.

Order XXVI deals with Commissions. Rules 1 to 8 cover commissions for the

examination of witnesses. Rules 9 and 10 deal with commissions for local

investigation, while commissions for scientific investigation and for the purpose of

ministerial acts and the sale of property are covered by Rules 10A, 10B and 10C.

277
Section 75. Power of court to issue commissions.- Subject to such conditions and limitations as may be
prescribed, the Court may issue a commission-
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which is in the
custody of the Court pending the determination of the suit; (g) to perform any ministerial act.

The remaining provisions deal with commissions for the examination of accounts

and for making partitions and contain general provisions, including commissions

at the instance of foreign tribunals.

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474. For the present purpose, the court has to deal with Rules 9, 10, 10A and

10B. Rule 9 empowers the court to issue a commission for the purpose of a local

investigation which it considers to be requisite or proper for the purpose of

elucidating any matter in dispute. After a local inspection, Rule 10 empowers the

commissioner, to submit a signed report to the Court together with the evidence.

Rule 10 provides as follows:

―10 . Procedure of Commissioner— (1) The Commissioner,

after such local inspection as he deems necessary and after
reducing to writing the evidence taken by him, shall return
such evidence, together with his report in writing signed by
him, to the Court.
(2) Report and deposition to be evidence in suit. The report of
the Commissioner and the evidence taken by him (but not the
evidence without the report) shall be evidence in the suit and
shall form part of the record; but the Court or, with the
permission of the Court, any of the parties to suit may
examine the Commissioner personally in open Court touching
any part of the matters referred to him or mentioned in his
report, or as to his report, or as to the manner in which he has
made the investigation.
(3) Where the Court is for any reason dissatisfied with the
proceedings of the Commissioner, it may direct such further
inquiry to be made as it shall think fit.‖

Rule 10A makes the following provisions in regard to the appointment of a

commission for the purposes of scientific investigation:

―10A . Commission for scientific investigation— (1) Where

any question arising in a suit involves any scientific
investigation which cannot, in the opinion of the Court, be
conveniently conducted before the Court, the Court may, if it
thinks it necessary or expedient in the interests of justice so
to do, issue a commission to such person as it thinks fit,
directing him to inquire into such question and report thereon
to the Court.
(2) The provisions of rule 10 of this Order shall, as far as may
be, apply in relation to a Commissioner appointed under this
rule as they apply in relation to a Commissioner appointed
under rule 9.‖

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Rule 10B deals with the appointment of a commission for the performance of a

ministerial act which cannot be conveniently performed before the court.

475. While directing the ASI to carry out a scientific investigation, the High

Court was exercising its powers under Section 75 and Rule 10A of Order XXVI. To

such an investigation, sub-rule 2 of Rule 10A stipulates that the provisions of Rule

10 shall apply, as far as may be, as they apply in relation to a Commissioner

appointed under Rule 9. Rule 10(2) stipulates that the report and the evidence

taken by the commissioner ―shall be evidence in the suit‖. There is a mandate

of the statute that the report and the evidence be treated as evidence in the suit

and that it ―shall form part of the record‖. However, either the court on its own

accord or any of the parties to the suit (with the permission of the court) may

examine the Commissioner personally. This is an enabling provision under which

the Commissioner can be examined either by the court on its own accord or at the

behest of a party to the suit. The subject matter on which the Commissioner can

be examined is also described in sub-rule 2 of Rule 10. The Commissioner may

be examined on:

(i) Any of the matters referred;

(ii) Any of the matters mentioned in the report;

(iii) As to the report; or

(iv) As to the manner in which the investigation has been made.

This covers both matters of procedure followed in conducting the investigation

and the substantive aspects of the report.

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476. Dr Bhuvan Vikram Singh

During the course of the proceedings before the High Court, the plaintiffs in Suit 5

filed an application requesting the examination of Dr Bhuvan Vikram Singh, who

was part of the excavation team. The High Court summoned the witness. Dr

Bhuvan Vikram Singh filed an application237 requesting that he may be summoned

as a court‘s witness as he was part of the court appointed excavation team and

was not willing to depose as a witness of any party to the suit. The counsel for the

plaintiffs in Suit 5 did not oppose the application and made a statement that he did

not wish to examine Dr Bhuvan Vikram Singh as a witness in Suit 5. However, the

counsel made a request that Dr Bhuvan Vikram Singh should be treated and

examined as a court‘s witness. By an order dated 4 December 2006, the High

Court discharged the witness without recording his deposition, while observing

that the court itself had the discretion to call any witness and be examined as a

court‘s witness and such a discretion could not be fastened upon the court by an

application filed by any party.

477. Justice Sudhir Agarwal in the course of his judgment noted that parties had

raised objections to the report, which were to be decided by the court. But

then, it was found that the nature of the objections was such that unless

parties were allowed to lead evidence, a decision on the objections could

not be taken. Hence, on 3 February 2005, the High Court directed that the

ASI report shall be admitted in evidence but the objections that were raised

237 Application no 25(o) of 2006

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by the parties would be decided at the final hearing of the suits by which

time the recording of evidence would be complete. The High Court noted

that there is no requirement in the law or in Rules 10 or 10A or Order XXVI

that the report cannot be treated as substantive evidence unless the

Commissioner is examined as a witness. The High Court observed that

none of the parties opted to examine the Commissioner on any matter

touching the report. Moreover, the objections filed by them did not place a

challenge to the entirety of the report but only to the conclusions drawn in

the Summary of results. It appears that allegations of bias and mala fides

were also urged before the High Court; however, these were not pressed

during the course of the hearing by Ms Arora, learned Senior Counsel,

before this Court.

478. There is no dispute about the factual position that none of the parties

sought to examine the Commissioner in terms of the provisions contained

in Rule

10(2) of Order XXVI which, as seen above, are applicable by virtue of Rule

10A(2) to a Commission constituted for a scientific investigation. Rule 9 of Order

XXVI is a substantive power allowing the court to issue a Commission for making

a local investigation. Rule 10 is procedural in nature. Rule 10A is substantive,

empowering the court to issue a commission for making a scientific investigation.

Rule 10A(2) which applies the provisions of Rule 10, in its application to a

Commissioner appointed under Rule 9, to a commission for scientific investigation

contains the expression ―as far as may be‖. These words comprehend the

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notion of that which is practicable, and to the extent feasible for the purpose of

fulfilling the power which is conferred upon the court to issue or appoint a

Commission. The second part of Rule 10(2) is enabling insofar as it confers a

discretion on the court to either itself examine the Commissioner on matters

pertaining to the report or investigation and for enabling parties to request the

court to call the Commissioner for examination. Rule 10 does not abrogate the

right to question the report of a Commissioner if the enabling power of calling the

Commissioner for cross-examination is not exercised. A party may avail of that

opportunity by seeking the examination of the Commissioner on matters bearing

upon the report. A party may also lead evidence of its own witnesses who seek to

controvert the methodology or the findings of the Commissioner appointed for

conducting a scientific investigation. The right of a party to object to the report of

the Commissioner is not abrogated merely because the Commissioner is not

called for cross-examination. Much will depend on the nature of the objections

which are sought to be urged by a party before the Court though the

Commissioner was not called for examination.

479. In the present case, the High Court was of the view that there was no

requirement in law for the Commissioner to be called upon to give evidence

as a condition precedent to the report being treated as evidence in the suit.

The High Court is justified in this view since Rule 10(2) of Order XXVI

stipulates that the report of and the evidence taken by the Commissioner

―shall be evidence in the suit and shall form part of the record‖.

Hence, the report was correctly treated as evidence in the suit and as the

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part of the record. This, however, did not foreclose any party to the

proceedings from questioning the report for which, it was open to it to follow

any one or more of the following courses of action namely:

(i) Calling for the examination of the Commissioner in open court;

(ii) Leading evidence of its own witnesses to displace the report of the

Commissioner; and

(iii) Placing its objections to the report of the Commissioner for consideration

by the court. The judgment of Justice Agarwal does in fact note that the

objections which parties had submitted to the report would be decided after

the final hearing of the suits, by which time the evidence would be

complete. The entitlement of a party to follow or pursue the courses of

action referred to in (ii) and (iii) above was independent of the enabling

power conferred by the latter part of Rule 10A(2).

480. Having said this, it is necessary to bear in mind Section 45279 of the Evidence

Act 1872. When the court has to form an opinion, among other things, upon a

point of science, the opinions upon that point of persons specially skilled

279 Section 45 provides

thus:
Opinions of experts.—When the Court has to form an opinion upon a point of foreign law or of science or art, or
as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in
such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant
facts.
Such persons are called experts. Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are
relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind,
incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing
the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are
relevant.

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(c) The question is, whether a certain document was written by A. Another document is produced which is proved
or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by
different persons, are relevant.
in the science at issue are relevant facts. Such persons, as the statute provides

―are called experts‖. The manner in which the report of an expert must be

evaluated has been delineated in a decision of the Privy Council in Chandan Mull

Indra Kumar v Chiman Lal Girdhar Das Parekh 238. Lord Romer recorded what

the Subordinate Judge in that case had held about the manner in which the report

of a local commission should be approached:

―It has been laid down that interference with the result of a
long and careful local investigation except upon clearly
defined and sufficient grounds is to be deprecated. It is not
safe for a Court to act as an expert and to overrule the
elaborate report of a Commissioner whose integrity and
carefulness are unquestioned, whose careful and laborious
execution of his task was proved by his report, and who had
not blindly adopted the assertions of either party.‖

Having recorded the above observations of the trial judge, the Privy Council

proceeded to affirm them as reflecting the correct position in law:

―This in their Lordships‘ judgment is a correct statement of

the principle to be adopted in dealing with the commissioner's
report. It is substantially the principle already laid down by this
Board in the case of Ranee Surut Soondree Debea v. Baboo
Prosonno Coomar Tagore [(1870) 13 Moo. I.A. 607 at p.
617.].‖

[See also in this context the judgment of a learned Single Judge of the Delhi High

Court in New Multan Timber Store v Rattan Chand Sood239]

481. Dr Rajeev Dhavan, in the course of his written submissions, fairly accepts

that ―the court may not have the expertise to sit in judgment over the experts‖.

238 AIR 1940 PC 3

239 (1997) 43 DRJ 270

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Yet, according to the submission, certain aspects can certainly be examined by

the court without sitting in judgment over the expertise of the Commissioner.

Those aspects are as follows:

(i) Whether the commission has fulfilled the remit of the court to provide an

answer;

(ii) Whether conditionalities and limitations have been observed;

(iii) Whether the conclusions are in conformity with the findings;

(iv) Whether there are obvious inconsistencies in the report; and

(v) Whether conclusions have been drawn beyond reasonable probabilities.

Hence, Dr Dhavan urged that in a first appeal, it is open to the appellate court to

examine the conclusions drawn by the trial court if they are unrelated to and in

excess of the report. Moreover, where all the parties have not cross-examined the

Commissioner, the trial court and the appellate court would be acting within its

jurisdiction in examining objections based on consistency, relevance and

probability.

482. In principle, we are of the view that a party to a suit is not foreclosed

from raising objections to the report of a Commissioner or from leading the

evidence of its own witnesses to controvert the findings merely because it has not

requested the court to summon the Commissioner for the purpose of examination.

But, a party which fails to take recourse to the enabling power which is conferred

by Rule 10(2) to request the court to allow the examination of the Commissioner

in court, may in a matter touching upon the expertise of the Commissioner face a

peril. In the present case, ASI is an expert authority. Its credentials and expertise

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are beyond reproach. The nature of the objections which can legitimately be

considered by the court will depend upon the nature of the investigation ordered

to be conducted by the Commissioner and the domain expertise involving both

knowledge and experience in the particular branch of learning. There may well be

certain facets of the report of the Commissioner on a matter pertaining to the

scientific investigation which could best be explained by the Commissioner. Rule

10(2) allows the Commissioner to be examined on any matter mentioned in the

report or as to the report or as to the manner in which the investigation has been

made. Failure to invoke the enabling power which is conferred in Rule 10(2) may

result in consequences bearing on the failure of the party to address the

clarifications which it seeks to the Commissioner in the course of an examination.

In a matter pertaining to scientific investigation, the court lacks expertise on

issues requiring domain knowledge which is why the Commissioner was

appointed in the first place. The object and purpose of appointing the ASI was to

direct an excavation at the disputed site so as to enable the court to form an

objective view on the subject matter of the dispute on the basis of the material

found and the conclusions drawn by the ASI. The failure of a party which seeks to

question the report of the Commissioner to call the Commissioner for

crossexamination may circumscribe the nature of the objections which can be

raised before the court for the reason that the Commissioner who was best

positioned to explain the report has not been called for examination.

483. We accept the proposition urged by Dr Dhavan, learned Senior Counsel

that as a matter of principle, despite not having called the Commissioner for

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examination, a party could still urge objections before this Court on matters such

as the following:

(i) Whether the remit of the court has been fulfilled by the Commissioner,

including

a. Whether the Commissioner has decided what was not referred; or

b. Whether the Commissioner has not decided something which was

referred;

(ii) Whether there are contradictions or inconsistencies in the report of the

Commissioner; and

(iii) Whether the conclusions or findings of the Commissioner arise from the

report.

Ultimately, it lies within the jurisdiction of the court to decide whether the findings

that are contained in the report of the ASI sub-serve the cause of truth and justice

on the basis of relevance and preponderance of probabilities. Common sense

ought to guide the exercise of judicial discretion, here as in other branches of the

law.

Analysis

Pleadings

484. The plaintiffs in Suit 5 sought a declaration ―that the entire premises of Sri

Rama Janmabhumi at Ayodhya… belongs to the plaintiff deities‖. The pleading in

paragraph 23 of th e plaint is that there was an ancient temple dating back to the

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reign of Vikramaditya at Sri Rama Janmabhumi which was partly destroyed and

an attempt was made to raise a mosque on the site:

―23. That the books of history and public records of

unimpeachable authenticity establish indisputably that there
was an ancient Temple of Maharaja Vikramaditya‘s time
at Sri Rama Janma Bhumi, Ayodhya. That temple was
destroyed partly and an attempt was made to raise a
mosque thereat, by the force of arms, by Mir Baqi, a
commander of Baber‘s hordes…In 1528 Babar came to
Ayodhya and halted there for a week. He destroyed the
ancient temple and on its site built a mosque, still known
as Babar‘s mosque…‖
(Emphasis supplied)

The claim in Suit 5 is that (i) there existed an ancient temple at the site of Ram

Janmabhumi; (ii) the temple dated back to the era of Vikramaditya; and (iii) Babur

constructed the mosque in 1528 by destroying the temple and at its site.

Issues

485. In view of the pleadings of the parties, the following issues were framed in

Suit 4 and Suit 5:

―(a) Issue No. 1(b) in Suit No. 4

―Whether the building had been constructed on the site of an
alleged Hindu temple after demolishing the same as alleged
by defendant no. 13? If so, its effect?‖
(b) Issue No. 14 in Suit No. 5
―Whether the disputed structure claimed to be Babri Masjid
was erected after demolishing Janmasthan temple at its site?
‖

In order to establish their case, the plaintiffs in Suit 5 need to prove that:

(i) There existed an ancient Hindu temple at the disputed site;

(ii) The existing ancient Hindu temple was demolished in order to construct the

Babri Masjid; and

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(iii) The mosque was constructed at the site of the temple.

The burden of proof to establish a positive case lies on the plaintiffs in Suit 5 in

terms of Sections 101 to 103 of the Evidence Act 1872.

The purpose of the excavation ordered by the High Court

486. While ordering a GPR survey, the High Court by its order dated 23 October

2002 explained the purpose and object of doing so in the following terms:

―The nature of super structure to a great extent is related to

the foundations. …If any foundation is existing of any
construction, it may throw light as to whether any structure
existed and if so what would have been the possible structure
at that time…‖

The GPR survey report dated 17 February 2003 found a variety of anomalies

ranging from 0.5 to 5.5 meters in depth that could be associated with ancient and

contemporaneous structures such as pillars, foundations walls and slab flooring

extending over a large portion of the site. The survey report however indicated

that these anomalies were required to be confirmed by ‗systematic ground

trothing‘, such as by archaeological trenching. Out of 184 anomalies detected by

the GPR survey, 39 were confirmed during excavation.

On 5 March 2003, when the High Court directed the ASI to excavate the site, it

was in order to determine:

―Whether there was any temple/structure which was

demolished and a mosque was constructed on the disputed
site.‖

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The ASI presented its final report dated 22 August 2003 opining:

―Now, viewing in totality and taking into account the

archaeological evidence of a massive structure just below the
disputed structure and evidence of continuity in structural
phases from the tenth century onwards upto the construction
of the disputed structure along with the yield of stone and
decorated bricks as well as mutilated sculpture of divine
couple and carved architectural members including foliage
patterns, amalaka, kapotapali doorjamb with semi-circular
pilaster, broken octagonal shaft of black schist pillar, lotus
motif, circular shrine having pranala (waterchute) in the north,
fifty pillar bases in association of the huge structure, are
indicative of remains which are distinctive features found
associated with the temples of north India.‖
(Emphasis supplied)

The basic objection to the ASI report is that no finding was rendered on whether

any underlying temple or structure was demolished and a mosque was

constructed on its site. In this context, it has been submitted that by its very

nature, the report which is an opinion (albeit of an expert body) is not direct

evidence of a fact and is inherently speculative and inconclusive.

487. Section 3 of the Evidence Act 1872 defines the expression ―fact‖ thus:

――Fact‖ means and includes-

(1) anything, state of things, or relation of things, capable of
being perceived by the senses;
(2) any mental condition of which any person is conscious.‖

However, Section 45 allows for an opinion of an expert as a relevant fact when

the court has to form an opinion upon a point of foreign law, science or art or as

to the identity of handwriting or finger impressions.

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The distinction between a witness of fact and an expert witness has been

explained in a decision of this Court in Prem Sagar Manocha v State (NCT of

Delhi)240:

―20…The duty of an expert is to furnish the court his opinion

and the reasons for his opinion along with all the materials. It
is for the court thereafter to see whether the basis of the
opinion is correct and proper and then form its own
conclusion. But, that is not the case in respect of a witness of
facts. Facts are facts and they remain and have to remain as
such forever. The witness of facts does not give his opinion
on facts, but presents the facts as such. However, the expert
gives an opinion on what he has tested or on what has been
subjected to any process of scrutiny. The inference drawn
thereafter is still an opinion based on his knowledge...‖

The report which has been submitted by the ASI is an opinion; an opinion

nevertheless of an expert governmental agency in the area of archaeology. The

report constitutes the opinion of an expert. Expert opinion has to be sieved and

evaluated by the court and cannot be conclusive in and of itself.

Archaeology as a discipline

488. The report which has been presented by ASI is assailed on the ground that

as distinct from the natural sciences, archaeology is a branch of knowledge in the

social sciences and is inherently subjective. The submission is that an

archaeologist, in order to arrive at a conclusion, draws inferences from a variety

of other disciplines including history, sociology and anthropology. The process of

inferential reasoning – it is urged - may lead to multiple layers of subjectivity

affecting the ultimate conclusions. Hence, it has been submitted that an

240 (2016) 4 SCC 571

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archaeological report does not furnish verifiable conclusions but provides

inferences drawn from data or objects found during the course of excavation. It

has been urged that interpretations vary and archaeologists may differ in the

conclusions drawn from on the same set of data. Hence, there is no absolute or

universal truth.

Justice Agarwal, during the course of his judgment opined:

―3896. Archaeology provides scientific factual data for
reconstructing ancient historical material, culture,
understanding. Archaeology… is a multi-disciplinary scientific
subject and requires a team of workers for effective results.
Excavation of ancient sites is one of the major works of
Archaeologists. As it is a scientific discipline, it uses scientific
methods in its working.‖

Ms Meenakshi Arora, learned Senior Counsel has urged that contrary to the

above finding, expert witnesses have testified to archaeology being a matter of

inference and interpretation:

(i) Jayanti Prasad Srivastava (DW 20/5), who retired as a Superintending

Archaeologist in the ASI deposed in support of the report. He stated:

―…Interpretation is an important aspect in excavation…‖

―…By the word conjure, I mean conjectural picture which

could be based on the available evidence and it is very much
in the practice in archaeological diggings…‖

(ii) R Nagaswami (PW 17), who retired as Director of Archaeology in the

Government of Tamil Nadu and was an expert witness for the plaintiffs in

Suit 5 stated:

―…In archaeology data collected in excavation needs to be

interpreted from the context and reference to related textual
material from known authentic sources. If we are to repeat

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what is mentioned in the excavation report, the purpose of

excavation which is reconstruction of the history, is not
possible…‖
(Emphasis supplied)

(iii) Professor Dr Shereen F Ratnagar (PW 27), a former professor of

archaeology at JNU who was an expert witness for the plaintiffs in Suit 4

stated:

―What constitutes a fact itself can be disputed. However, if

the fact is established, there may be two opinions on the fact
by two Archaeologists...‖

(iv) Dr Supriya Varma (PW 32), who was an Associate Professor of

Archaeology in the School of Social Sciences at the University of

Hyderabad stated :

―…When archaeologists excavate and find archaeological

material which can include pottery and bones inference and
interpretation are made by archaeologists on the basis of the
context in which these finds are exposed. The data does not
speak for itself. Inferences are made on the basis of certain
principles and methods that are followed in archaeology…‖

489. About the existence of 17 rows of pillar bases from north to south with

each row having 5 pillar bases, R Nagaswami (OPW 17) stated that it was only an

inference as all the 85 pillar bases had not been exposed. A similar statement

was made by Dr Ashok Datta (PW 31), a senior lecturer in the Department of

Archaeology of the University of Calcutta. Dealing with figure 23 of the ASI report

(the isometrical figure), he noted that it was not to scale or elevation of different

floor levels and it may be considered purely conjectural. R Nagaswami (OPW 17)

and Jayanti Prasad Srivastava (DW 20/5) supported the view of the ASI report

regarding the existence of a massive Hindu temple at the disputed site. On the

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other hand, Dr Supriya Varma (PW 32) agreed with the finding of the ASI

regarding the existence of the structure underneath the disputed structure but

disagreed with the interpretation. These depositions have been relied upon to

suggest that archaeologists can and do disagree on the interpretation of data

because the field is essentially inferential.

490. Archaeology as a science draws on multi-disciplinary or trans-

disciplinary approaches. In considering the nature of archaeological evidence, it is

important to remember that archaeology as a branch of knowledge draws

sustenance from the science of learning, the wisdom of experience and the vision

which underlies the process of interpretation. As a discipline, it nurtures a trained

mind. It relies on a cross-fertilization with other disciplines such as history,

sociology and anthropology. This is not a weakness but a strength. Archaeology

combines both science and art. As a science, it is based on the principle of

objective evaluation. As an art, it relies on a vision which is realised through years

of commitment to the pursuit of knowledge based on the histories of eras.

Archaeology as a discipline cannot be belittled as unreliable. The value of

archaeology cannot be diluted in the manner which has been suggested by laying

a claim to its being a weak form of evidence.

491. While considering archaeological evidence within the framework of

Section 45 of the Evidence Act and the court-ordered excavation in the context of

the provisions of Rule 10A of Order XXVI of the CPC, it is nonetheless necessary

for the court to appreciate both the strength and the limits of the discipline.

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Archaeology is no exception. A distinguished archaeologist, Sir Mortimer Wheeler

summarised the experience which he gained, in his work titled ―Archaeology

from the Earth‖241. Dealing with stratigraphy, Sir Mortimer notes:

―an ancient city in the East is never level. Very rarely is a city
completely destroyed and completely rebuilt at one moment
and at one horizon. Normally, a house is reconstructed or
replaced as it decays, or at the whim of its owner. The town
as a whole is constantly in a state of differential destruction
and construction. Individual building sites rise above their
neighbours; the town-site itself rises and assumes the contour
of a hill; buildings on its slopes are contemporary with
buildings on its summit. A doorway or a potsherd may be
found at one spot 10 feet below a doorway or a potsherd of
precisely the same date at another spot.‖

Excavation in layers is in and of itself a complex exercise. Interpreting the findings

in turn involves navigating through layered complexities. Sir Mortimer notes:

―Well, there are examples of various kinds of stratigraphical

evidence: of layers that are contemporary with one another,
layers that are separated by greater or lesser time-intervals,
layers that have accumulated in unbroken succession. The
reading of a section is the reading of a language that can only
be learned by demonstration and experience. A word of
advice to the student. However practiced, do not read too
hastily. Be your own devil‘s advocate before passing
judgment. And, wherever possible, discuss your diagnosis
with others – with colleagues, with pupils, with your foreman.
(‗The testimony of one person is no testimony; declares
Hywel Dda, the wise Welsh law-giver.) Be humble. Do not
ignore the opinion of the uninstructed. ‗Everyone knows as
much as the savant. The walls of rude minds are scrawled all
over with facts, with thoughts‘. Emerson said so, and he was
right. Even if you do not accept the views of those you
question, the mere act of questioning is at the same time a
restraint and a stimulus.‖

Sir Mortimer‘s caution would apply as much to the law as to archaeology:

something that we as judges would do well to bear in mind in arriving at our

conclusion in these appeals.

241 Mortimer Wheeler, Archaeology from the earth, Oxford: Clarendon Press (1954)

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492. In his book titled ―The Logic of Scientific Discovery‖242, Karl Popper

distinguishes the work of a scientist with that of a philosopher. Popper quotes

Lord Acton when he states:

―there is nothing more necessary to the man of science than

its history and the logic of discovery….: the way error is
detected, the use of hypothesis, of imagination, the mode of
testing.‖

The supposed distinction between science as embodying absolute truth and

archaeology as unguided subjectivity is one of degree not of universes. Yet as in

other disciplines of its genre, archaeology is as much a matter of process as it is

of deduction. The archaeologist must deal with recoveries as much as the ‗finds‘

from them. Interpretation is its heart, if not its soul. Interpretations do vary and

experts disagree. When the law perceives an exercise of interpretation it must

recognize margins of error and differences of opinion. Archaeological findings are

susceptible of multiple interpretations. This may in part be a function of the

archaeologist‘s perception of the past and what about the past the archaeologist

seeks to decipher. Tradition based archaeology may seek facts about the past. An

archaeologist, on the other hand may set about to validate a belief about the past.

An archaeologist may approach the task with an open mind to unravel features

that are unknown. Guided by the underlying approach to the discipline, the

archaeologist will bring to bear on the task at hand the purpose underlying its own

origin. So long as we understand the limits and boundaries of the discipline, we

can eschew extreme positions and search for the often elusive median.

242 Karl R. Popper,The Logic of Scientific Discovery, Hutchinson & Co (1959)

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493. Ms Meenakshi Arora relied on decisions of this Court which consider

reports of handwriting experts to be ―generally of a frail character‖ leading it to

―be wary to give too much weight‖ to them. This form of evidence has been held

to be ―indecisive‖ and hence something which must yield to positive evidence.

The reason for this was explained in Sri Sri Sri Kishore Chandra Singh Deo v

Babu Ganesh Prasad Bhagat243, on the ground that the conclusions of

handwriting experts are drawn ―upon mere comparison of handwriting‖. The

principle was reiterated in Smt Bhagwan Kaur v Shri Maharaj Krishan

Sharma244. In Murari Lal v State of Madhya Pradesh245, this Court held that it

would be unsafe to found a conviction solely on the opinion of a handwriting

expert. While formulating the principle, this Court however noted that the weight

to be ascribed to expert evidence is based on the nature of the science on which

it is based. Where the science in question possesses essential ingredients of

verifiability and objective analysis, expert evidence would to that extent require

some deference.

The Court held:

―4…The more developed and the more perfect a science,

the less the chance of an incorrect opinion and the converse
if the science is less developed and imperfect. The science of
identification of finger-prints has attained near perfection and
the risk of an incorrect opinion is practically non-existent. On
the other hand, the science of identification of handwriting is
not nearly so perfect and the risk is, therefore, higher...‖

Thus, in the above extract, the court made a distinction between identification of

fingerprints and opinions of handwriting experts. Hence, the weight that should be

243 AIR 1954 SC 316

244 (1973) 4 SCC 46
245 (1980) 1 SCC 704

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given to expert evidence is based on the nature of the underlying science on the

basis of which the expert opines. Commenting on the imperfect nature of the

science of identification of handwriting this Court in State of Maharashtra v

Sukhdev Singh246 held:

―29…But since the science of identification of handwriting by

comparison is not an infallible one, prudence demands that
before acting on such opinion the court should be fully
satisfied about the authorship of the admitted writings which
is made the sole basis for comparison and the court should
also be fully satisfied about the competence and credibility of
the handwriting expert…
True it is, there is no rule of law that the evidence of a
handwriting expert cannot be acted upon unless substantially
corroborated but courts have been slow in placing implicit
reliance on such opinion evidence, without more, because of
the imperfect nature of the science of identification of
handwriting and its accepted fallibility…‖

[See also in this context: Shashi Kumar Banerjee v Subodh Kumar Banerjee247,

S P S Rathore v CBI248 and Chennadi Jalapathi Reddy v Baddam Pratapa

Reddy249.]

The attempt by Ms Arora, learned Senior Counsel in her submissions to compare

archaeological evidence with handwriting analysis is flawed. Underlying this

submission is an erroneous appreciation of the knowledge, skills and expertise

required of an archaeologist. It becomes necessary to dwell on the process

adopted by ASI in conducting the excavation.

The process

246 (1992) 3 SCC 700

247 AIR 1964 SC 529
248 (2017) 5 SCC 817
249 (2019) SCC Online SC 1098

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494. The High Court issued detailed directions for the preservation of the record

of excavation. Following the order of the High Court on 5 March 2003, a

fourteen member ASI team was constituted by the Director General. On 11

March 2003, the High Court directed that a general survey of the site and

layout of trenches would be conducted in the presence of contesting

parties or their counsel.

Videography was ordered and the results were to be placed in a sealed cover.

The materials recovered were also directed to be preserved ―under lock and

seal‖ in a building situated in proximity to the site. Periodical progress reports of

the work of excavation were submitted to the High Court. The High Court was

periodically informed about the trenches which had been laid, the nature of the

excavation and the material that was recovered. On 26 March 2003, the High

Court issued specific directions to the ASI team to maintain a register recording

the recovery of finds, which was to be sealed in the presence of parties. The

following directions were issued:

―(i) ASI team shall note down in its own register to be

maintained (in respect of recovery of finds) the depth in
meter/feet of the trench where it is found. It may also note
down the layer of the strata according to its own
interpretation.
(ii) The signature of either the contesting parties or their
counsel may be obtained.
(iii) The register should further specify the nature of the finds
i.e. bones and glazed ware etc.
(iv) The finds shall be sealed in the presence of the
parties/counsel and signatures of either the contesting party
or his/their counsel shall also be obtained who are present on
the spot.
(v) If the nature of the finds is not certain, a noting may be
made accordingly and when it is unsealed, its nature may be
verified after the Court permits to do so.‖

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Photographs both in colour and black and white were directed to be taken. A

register of work carried out from day to day was directed to be prepared by the

ASI team. Parties were also permitted to observe the work of excavating

trenches. The High Court observed:

―228... 4. It is suggested by Sri Jilani, learned counsel for the

Sunni Central Board of Waqfs, that not more than two
trenches should be excavated at one time after the
completion of work in the trenches already being excavated
for the reason that the parties or their counsel may not be
able to observe the excavation of the trenches at one time.
Sri B.R. Mani, Superintending Archaeologist and team leader
has submitted a report dated 22.3.2003 stating that it has
carved out various trenches of area 4 x 4 meters leaving 0.5
meter baulk all around. If the trenches are adjoining to each
other, it can be observed by the contesting parties or their
counsel and their nominees. We have permitted for each of
the contesting parties to observe with their counsel as well as
their nominees (one nominee at one time). The result is that
for each of the contesting parties, there are three observers. If
the distance is too much and it is difficult to observe another
trench by any of them, they can legitimately raise grievance in
this respect. It may be noted that the ASI team should ensure
confidence of the parties and their counsel in the matter of
excavation. It is, however, to be kept in mind that we have
directed for expeditious excavation and for that purpose if
necessary and without losing the confidence of the parties
more than two trenches may also be laid by the ASI team.‖

Another suggestion was that there must be adequate representation to the

Muslim community in the ASI team and in the engagement of labour for the work

of excavation. This was also acceded to by the High Court by directing that

adequate representation for both the communities should be given in the

constitution of the ASI team and the labour deputed at the site. In order to ensure

transparency, two judicial officers from the Uttar Pradesh Higher Judicial Service

of the rank of Additional District Judge were deputed to oversee the work. The

process of excavation was carried out in the presence of parties and was

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governed by the directions issued by the High Court to ensure impartiality and

transparency. This was facilitated by directing the preservation of records,

videographing of the excavation process, preservation of photographs and by the

presence of two judicial officers for the purpose of overseeing the work. After the

completion of the excavation work but before the preparation of the final report,

further directions were issued by the High Court on 8 August 2003 for keeping

intact all the trenches so as to facilitate the ASI team to complete the study and

submit its report.

495. The ASI report has ten chapters which consist of:

Chapter I Introduction

Chapter II Cuttings

Chapter III Stratigraphy and Chronology

Chapter IV Structure

Chapter V Pottery

Chapter VI Architectural Fragments

Chapter VII Terracotta Figurines

Chapter VIII Inscriptions, Seals, Sealings and Coins

Chapter IX Miscellaneous Objects

Chapter X Summary of Results

Appendices I to IV to the report contain the following information :

Appendix I C14 Dating of Charcoal Samples from Ayodhya excavation

Appendix IIA Report on the Chemical Analysis of Plaster Samples

pertaining to different trenches collected from Ayodhya

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Appendix IIB Report on the Chemical Analysis of Floor Samples pertaining

to different trenches collected from Ayodhya

Appendix III
On-Site Chemical Treatment and Preservation of Excavated

Artefacts

Appendix IV Information on the Data-Form as per direction of Special Full

Bench, Lucknow of the Hon‘ble High Court, Allahabad.

496. The ASI submitted its final report on 22 August 2003 together with a

complete record containing field notebooks, series, registers, site notebooks and

a laptop together with a hard disk and compact disks. The record that was

submitted by the ASI together with its report has been tabulated in paragraph 241

of the judgment of Justice Sudhir Agarwal. In assessing the report of the ASI, it

must therefore be borne in mind that a structured process was followed in the

course of excavation in order to ensure that the process of excavation was

documented both in electronic and conventional forms. What is excavated and

found is a matter of fact. Undoubtedly, the archaeologist has to relate the data

which emerges from the excavation to a context. The process of drawing

inferences from data is an essential element of archaeology as a discipline but to

reject this exercise as conjectural and hypothetical would be a dis-service both to

the discipline and to the underlying process. No submission questioning the

independence of the ASI team has been urged by Ms Arora. In this backdrop, the

fact the none of the parties called for examination of any one from the ASI team

under the provisions of Order XXVI Rule 10 (2) cannot be ignored.

The Idgah defence

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497. The case of the plaintiffs in Suit 5 is that below the disputed site there

was an ancient temple dating back to the era of Vikramaditya which was

destroyed by

Mir Baqi, the Commander of Babur‘s forces and that the Babri mosque was built

upon it. It is alleged that the material used to construct the mosque was taken

from the destroyed temple, including the black Kasauti stone pillars.

In its written statement, the Sunni Central Waqf Board denied that there was in

existence any temple relatable to the era of Vikramaditya at the site of Babri

Masjid. It also denied that the mosque was constructed at the site of a temple by

utilising the material used in the underlying temple. In the written statement, the

Sunni Central Waqf Board also stated in paragraph 24(b) that:

―Emperor Babur was a Sunni Muslim and the vacant land on

which the Babri Masjid was built lay in state territories and did
not belong to anyone …‖

It therefore denied that there existed any underlying temple below the disputed

site or that the underlying temple was destroyed for the construction of the

mosque.

498. Initially, the defence that was urged in response to the plaint in Suit 5 was

that there was no underlying structure which was demolished for the construction

of the mosque. Confronted with the findings in the ASI report, the Sunni Central

Waqf Board altered the stance and sought to claim that among the structures that

came to be revealed during the course of the excavation was an ‗Idgah‘ or

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‗Kanati Masjid‘. This indeed, was not the case which was made out in the

pleadings and was directly contrary to the case of the Sunni Central Waqf Board

that the mosque had not been constructed upon the site of an existing temple but

was constructed on vacant land. The reference to the existence of an Idgah in

the underlying excavation was sought to be established through the

archaeologist witnesses – Dr Jaya Menon (PW 29), Dr Supriya Verma (PW 32)

and R C Thakran (PW 30).

Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the plaintiffs

in Suit 5, urged that none of the witnesses produced by the Sunni Central Waqf

Board deposed to the existence of an Idgah. The High Court observed:

―3809. Initially the case set up by the plaintiffs (Suit-4) was

that the building in dispute was constructed at a place where
(there) neither…existed any Hindu religious structure nor
(was) the place in dispute (a) place of worship…However,
when the excavation proceedings progressed, a marked
change in the approach of plaintiffs (Suit-4) became evident.
Some of the archaeologists, who also deposed later in favour
of plaintiffs (Suit-4)…tried to set up a new case that there
appears to be an Islamic religious structure existing beneath
the disputed building or that there existed an Islamic religious
structure when the disputed building was constructed. The
suggestion was that it could be either an Idgah or a Kanati
Masjid wherein only one long wall on the western side was
constructed with a niche. The consensus appears to be
amongst the eight experts of Muslim parties, more or less
accepting the existence of a structure beneath the disputed
structure. The above approach that the earlier structure was a
Islamic religious structure excludes the possibility of a
nonreligious structure at the disputed site beneath the
disputed structure. It narrows down our enquiry to the
question whether such structure could be an Islamic religious
structure or non-Islamic structure i.e. a Hindu Religious
Structure.‖

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The defence which was taken was that the pre-existing structure had an Islamic

origin. Once this defence was taken the issue narrowed down to whether the

preexisting structure had an Islamic or non-Islamic origin. The ASI report had

concluded that there was a Hindu temple underlying the disputed structure and

the correctness of this opinion was being tested.

499. During the course of the excavation, 28 walls came to be traced as shown in

figure 3A of the report. Of this, wall numbers 1 to 15 belong to or were

contemporaneous to the disputed structure. Wall numbers 16 to 28 dated prior to

the disputed structure and were found underneath. The ASI report found that wall

16 with a length of 50m had a width of 1.77m. Ten of its lower brick courses were

original while the upper six courses were added later in the subsequent phase of

construction:

―The wall 16 having its existing length around 50m, with its
unexposed middle part, is 1.77m wide. Its ten lower brick
courses are original and belong to the first phase of its
construction, but the upper six courses as seen in trenches
E6, E7 and E8 are added at a later date – four courses during
the second phase of construction and top two courses when
its southern length outside the disputed structure was utilized
in later constructions by reducing the width of the wall for the
new structure along with the structure 3. It is also noticed that
the first phase of wall 16 has been plastered in the inner side
with lime plaster while on the outer side the plaster was
provided in the second phase of its raising. There are a few
square cavities at intervals on both the faces of the wall in the
second phase which might have been used for providing
reinforcement to the wall…‖

Walls 16 and 17 were found to be in a similar north-south alignment:

―…Walls 16 and 17 were found running on almost the same

alignment in north-south orientation in trenches ZE1 and
ZF1.‖

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Wall 17 is a brick wall which was 1.86 m wide with four courses in the northern

area and six courses in the southern area. Wall 17 had the same length as wall

16. Wall 17 runs at a lower level:

―The wall 17 which is a brick wall was found to be 1.86 m

wide having the maximum of four courses in the northern area (Pl. 50) and
six courses in southern area. It was found to be of the same length as that of
wall 16, though having a slight deviation in its orientation in the cardinal
direction. Thus, it runs in the lower level than that of wall 16, almost parallel
to it in the northern area and comes out below the wall 16 in the southern
area as noticed in trench D7 where in the northern part it is projected 0.74 m
below wall 16 and in the southern part it is projected 1.07 m below wall 16
having provided decorated stone blocks on its top and also refixed in its
veneer (Pl. 51), probably at the time of the construction of wall 16 to serve as
its foundation. A thick floor of brick crush (Pl. 52) spread over a large area in
northern and southern areas with varying thickness was found associated
with wall 17.‖

The ASI report notes the existence of inner walls which are attached to wall 16

both in the northern and southern areas. In the northern area, the inner wall (wall

18A) extends to a length of 15m in the East–West direction. Similarly, the

excavation found two parallel walls (walls 18C and D). Accordingly, these findings

indicate that the case that wall 16 was a single Idgah wall stands belied and the

claim of the Sunni Central Waqf Board that an Islamic structure existed below the

disputed site cannot be accepted. Moreover, the defence in regard to the

existence of an Idgah beneath the mosque would postulate that the mosque was

built on the foundation of a demolished Idgah. Besides being a far-fetched

hypothesis, the nature of the recoveries belied the claim. The Idgah defence was

hence an afterthought, quite contrary to the pleadings of the Sunni Central Waqf

Board. The defence was an attempt to gloss over the initial case that the mosque

was built over vacant land. The underlying structure was not of an Islamic origin.

Disputed Structure and Pillar Bases

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500. The ASI report discloses that the disputed structure or structure 3 was found

to be directly resting over structure 4 which is an earlier construction. Structure 4

had a 50m long wall (wall 16) in the west and fifty exposed pillar bases to its east,

attached with floor 2 or the floor of the last phase of structure 4.

The report notes:

―A square sandstone block placed at the top and the

orthostats provided on its four sides, contemporary with the
floor 2 was the prima facie nature of the pillar base which
primarily served as base for the pillar erected over it. Their
foundations were circular or square or irregular in shapes
made of brick-bat courses laid in mud mortar, most of them
resting over floor 4, top of which was provided with sandstone
or calcrete blocks in lime mortar, these blocks were also
encased with brick-bats and somewhere sandstone chips
were used to get the desired height and level.‖

Seventeen rows of pillar bases were revealed from north to south, each row with

five pillar bases. The pillar bases in the central portion below the makeshift

structure on the raised platform could not be located due to the area restrictions

imposed by the High Court. Out of fifty excavated pillar bases, twelve were

completely exposed, thirty-five were partially exposed while three could be traced

in sections. The report notes that the controversy about the association of the

pillar bases with different layers and in respect of their load bearing capacity was

set at rest after the original form of the bases was exposed:

―…The present excavation has set aside the controversy by

exposing the original form of the bases having calcrete and
stone blocks arranged and set in a proper manner over a
brick foundation and their arrangements in rows including
their association with the top floor of the structure existing
prior to the disputed structure.‖

Forty-six pillar bases belong to floor number three and pertain to period VII dating

back to the twelfth century A.D., while four pillar bases belong to floor number four
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dating back to the eleventh century A.D. Seventeen rows of pillar bases were

constructed along the north-south brick wall (wall 16). The ASI report deduces

from the arrangement of the pillar bases that the central part of the pillared

structure was important and special treatment was given to it in architectural

planning. The decorated octagonal sand stone block on pillar base number

thirtytwo having flower motifs on four corners in trench F7 in the southern area is

stated to be a unique example at the site which belongs to the twelfth century

A.D. as it is comparable to the ones found in Sarnath. In the backdrop of these

observations in the ASI report, the finding which was arrived at by the High Court

was thus:

―3904. A perusal of the report particularly at page 54 shows

that all the 50 exposed pillar bases are attached with floor 2
dateable to 1200 A. D. and most of them are resting over floor
no. 4 which has the earliest floor. The carbon dating report
referred at page 69 of the report also proves that in a trench
ZH1 the date reported between floor 2 & 3 is between
9001300 A.D. which prima facie makes it clear that floor 2
was not made after 1300 A.D. and not before 900 A.D. while
floor 3 was made before 900 A.D. It is also clear from the
report that all the pillar bases exposed are attached with the
floors existing prior to the floor of disputed structure. Pillar
base is reported from the same trench, i.e. ZH-1 along with
the floor which confirms the association of floor 2/3 and pillar
bases along with C14 date between floor 2 & 3 (S. No. 47 of
pillar base in page no. 28). The same pillar base of ZH-1 was
predicted as an anomaly in the GRP Survey. Therefore, it is
clear that floor 4 which supports the foundation of pillar bases
was the most extensive floor belonging to period VII A (page
42 of the report & fig. 23 & plate 35). The timing of period VII-
A is the beginning of 12th century.‖

The ASI report concludes that there is in existence a massive underlying

structure, below the disputed structure.

Circular Shrine

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501. The ASI report refers to the presence of an east facing brick shrine labelled

as Structure 5 (corresponding to plates 59 and 60 of the photographs). The

circular structure possesses a rectangular projection in the east and has a chute

or outlet which according to the ASI is a ‗pranala‘ for draining out water. This

brick circular shrine is stated to be similar to Shiva temples near Rewa in Madhya

Pradesh at Chandrehe and Masaon belonging to 950 A.D. and a Vishnu temple

and another temple without a deity at Kurari and a Surya temple at Tinduli in

Fatehpur district. ASI has drawn an inference that on stylistic grounds, the circular

shrine dates back to the tenth century A.D.

In the context of the above findings, Mr C S Vaidyanathan has relied on the

testimony of the expert witnesses, to displace the submission of the Sunni Central

Waqf Board that these witnesses produced by them do not support the ASI report.

The following extracts from the depositions of the expert witnesses need to be

borne in mind:

(i) Suraj Bhan (PW 16) –

―I agree with the report of ASI about the remains of Temple

to the extent that these remains may have been of some
temple.‖

(ii) D Mandal (PW 24) –

―…a decorative stone has been fixed in wall no. 17. This
decorative stone is floral motif, it is used in Hindu Temples.‖
..
.

―It is correct to say that construction activities had been

carried out at the disputed site even before the Mughal
Period. As an Archeologist I admit discovery of structures
beneath the disputed structure during excavation.‖

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(iii) Supriya Verma (PW 32) –

―…I agree with the finding of ASI regarding existence of the

structure but I disagree with the interpretation arrived at by
ASI. Further, it is correct to say the disputed structure was not
constructed on the virgin land.‖

(iv) Dr Ashok Dutta (PW 31) -

―…I agree with the opinion of ASI that there lie a number of
structures in the form of walls and floors beneath the disputed
structure. Wall no. 1 to 15 may be related to the disputed
structure. Wall no. 16 onwards are walls belonging to a period
before the construction of the disputed structure.‖

Dealing with the circular shrine, the High Court observed:

―3937. The elevation, as shown in the drawing (Fig. 17 of

the ASI Report) suggests that this structure was built on a
raised platform, viz. adhisthana. The gargoyle, or the drain,
was provided on the northern side. The structure may be
dated to 9th-10th century A.D. (The ASI carried out C-14
determination from this level and the calibrated date ranges
between 900 A.D. and 1030 A.D.).
3938. This was an independent miniature shrine. The
architectural features suggest that, that it was a Shiva shrine.
3939. It is unthinkable that inspite of these clear features of
Shiva shrine, the objectors are identifying the same as a
Muslim tomb.
3940. Secondly, it is too small a structure for a tomb,
from inside it is only 4.4 ft. square. Neither could it
accommodate a grave in its interior, nor a Qiblah-Mihrab on
its western wall ; Qiblah was an integral and essential part of
tomb-structure during the Sultanate period (1192-1526 A.D.)
as is illustrated by numerous examples all over northern
India.
3941. Thirdly, there is no trace of an arch required for
constructing dome over the tomb. There are no hook-shafts to
bear and no structural trace to suggest any lateral thrust of
the mihrab. It may be noted that the sub-structure of the
mihrab is built massively on the edges of the four corners, to
counter the lateral thrust. One wonders, if it was a tomb
without any arch or dome, and without even a grave? 3942.
Thus, on the one hand the dimensions of this structure are
too small for a tomb and on the other the gargoyle was never
in tombs while it was an integral feature of the sanctum of
Shiva temples to drain out water poured on the Sivlinga.
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3943. Shrine is a holy place where worship is performed. It is

a structure where holiness is enshrined. Denial for the sake of
denial should not be allowed. "No evidence to make this
structure a shrine" and "a sheer figment of imagination and a
conjecture without any evidentiary basis", such comments
grossly lack technical acumen and clearly show the dearth of
logical thinking. These themselves are mere arguments
lacking "evidentiary basis". By these and many like
arguments show the 'ostrich attitude' of the plaintiff. 3944. A
structure is identified by its shape and/or by the use it was put
to or by the function it was supposed to perform. This circular
structure was found with a well defined 'Pranala' (water chute
to drain out ablution liquids).The pranala could well have
been denoted as drain but the area from where it was issuing
was only 40 x 60 m (including the squarish hollow chamber
for fixing the object of worship and the small entrance of the
east) which could not be used for bath room or for kitchen, a
few alternatives where water is required to be drained out,
thus, the only valid explanation was it being a 'pranala' of a
shrine, small only a subsidiary one and not the main shrine
holding central/main deity.
3945. Circular Shrine is found resting over wall 19A and
others, this single fact, does not make the 'Circular Shrine'
Contemporary to the said walls, as the working level for the
'Circular Shrine' is much higher, and only foundations of
Circular Shrine rest over the existing walls, which have been
incorporated as foundation of Circular Shrine, these walls
definitely are not made for providing foundation to the circular
Shrine. Apparently, when the Circular Shrine was built the
wall 19A and others were all buried under the ground and
foundation of the circular shrine just reached upto that level.‖

There is a significant aspect in relation to the circular shrine which must be borne

in mind. This is the presence of pillar bases above the circular shrine. This aspect

must be taken into account while ascertaining the overall weight to be ascribed to

the ASI report.

As regards the use of lime surkhi, it is urged by Ms Meenakshi Arora, learned

Senior Counsel that this is a typical material used in Islamic structures.

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Controverting this, Mr C S Vaidyanathan has placed reliance on the deposition of

Suraj Bhan (PW 16) who stated :

―it is correct to say that lime water was found to have been used in
the 3rd Century A.D. during the Kushana period in
Takshshila and Pakistan…‖

Similarly, Dr Jaya Menon (PW 29) also stated that :

―…lime mortar was definitely used from Neolithic period.‖

Further elaboration is hence not required on the use of lime surkhi.

Architectural fragments

502. Archaeological excavation of the disputed site at Ayodhya resulted in the

recovery of architectural fragments such as pillars, pilasters250, broken door

jambs, lintels, brackets, etc. These were retrieved as disjecta membra or broken

fragments from areas ranging from the surface of the mound to a considerable

depth in the trenches which were excavated.

Chapter VI of the ASI report which deals with architectural fragments states that

among the recoveries, the notable ones are:

―A few intact architectural members like Amlaka (plate 81,

figure 59) pillar with Ghata-Pallava base with dwarf beings as
weight-bearers and Kirtimukhas (plates 82-83, figure 59) to
mention a few, have also been recovered. Besides, there are
a number of architectural members which have been
decorated with deeply carved foliage motifs. This pattern is a
distinct one resembling like that of ―stencil‖ work (plates
8687). It may be pointed out that the various architectural
members with similar decorative designs have been found
used in the foundation of one of the major brick structures
250 ―Pilaster is a shallow pier or rectangular form projecting from a wall and, in classical architecture,
conforming to one of the orders and carrying an entablature.‖ - Michael Clarke, The Concise Oxford Dictionary of
Art Terms, Oxford Paperback Reference, OUP Oxford, 2010, pg 191

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(wall 16) (see Chapter IV- Structures) exposed in these

excavations.
The aforesaid pillars and other decorative architectural
members of this site like fragment of broken jamb with semi
pilaster (plate 85), fragment of an octagonal shaft of Pillar
(plate 84), a square slab with Srivatsa motif (plate 88),
fragment of lotus medallion motif (plates 89-90) emphatically
speak about their association with the temple architecture.
Stylistically, these architectural members in general and
pillars in particular may be placed in a time bracket of
tenthtwelfth Century A.D. It is also pertinent to note that there
are a few architectural members (plates 92-94), which can
clearly be associated with the Islamic architecture on stylistic
grounds, which might belong to sixteenth century A.D.
onwards.
In addition to the architectural fragments, a highly mutilated
sculpture of divine couple seated in alinganamudra has also
been recovered. The extant remain depicts the waist, thigh
and foot (plate 235).‖

503. During the course of the hearing, we have had the benefit of perusing

the plates depicting the photographs of the architectural fragments. Ms

Meenakshi Arora, learned Senior Counsel criticised the use of the expression

―divine couple‖ to depict the recovery reflected in plate 235. The criticism

advanced by counsel is not unfounded. The sculpture reflected in the plate is (as

the ASI report states) ―highly mutilated‖. According to the ASI team, what

remains of the sculpture indicates a ―waist, thigh and foot‖ of a couple. This

may well be an imaginative extrapolation of archaeological experience. But,

calling it a ―divine couple‖ is beyond the stretch of imagination. Excluding this

from consideration, the ASI team has on a cumulative analysis of all the other

findings arrived at the inference that stylistically these architectural findings and

pillars in particular belong to the time span of the tenth to twelfth century A.D. and

are typical of temple architecture. This inference, as it appears from the above

extract is independent of the sculpture of the couple found in ―alingan mudra‖.

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Hence even excluding the above sculpture, there is a reasonable basis for an

expert to draw the above inference.

During the course of excavation, ASI recovered an ‗Amalaka‘ which is typically a

segmented or notched globular stone disc with ridges on its rim with which sits on

top of the Hindu temples‘ shikhara or main tower. 251 An amalaka may also

resemble a lotus and is a symbol of a deity seated below. ASI also recovered a

‗ghatapalava‘ motif which is associated with a ceremonial offering to a deity and

as a symbol has been used to decorate shrines.

504. Ms Arora sought to rely on the testimonies of Jayanti Prasad (DW 20/5)

and Dr Supriya Verma (PW 32) in support of the submission that apart from Hindu

religious structures, these architectural fragments could belong to Buddhist or

Jain structures as well. Dr Supriya Verma states that it could well have been a

part of palaces or may belong to an Islamic structure. Extracts from the

depositions of the two witnesses are set out below:

―(a) Mr. Jayanti Prasad Srivastav (DW 20/5), an expert

witness who supported the ASI Report:
―…Amongst Jains, big temples are found but
architectural pattern is the same i.e. North Indian Shikhar
style…‖ (b) Dr Supriya Varma (PW 32) deposed thus:
―I think, very categorically it is very difficult to say that
some of the finds of ASI relate to Hindu religious
structures because these finds could well have been part
of palaces, Buddhist structure, Jain structure and Islamic
structure…‖

The possible linkages of Buddhist or Jain traditions cannot be excluded. Indeed,

in assessing archaeological or historical material one must eschew an

251 Adam Hardy, Indian temple architecture form and transformation the ar a r vi a tradition, th to th
centuries. New Delhi: Indira Gandhi National Centre for the Arts (1995)

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unidimensional view. The excavation in the present case does in fact suggest a

confluence of civilisations, cultures and traditions.

Carefully analysing these depositions, the issue essentially is whether this will

discredit the overall findings contained in the ASI report. In specialised subjects,

experts may and do differ. The statement that some of the fragments belong to an

Islamic structure has in fact been noticed in the ASI report. The report specifically

speaks of those fragments denoted by plates 92-94 which ―can clearly be

associated the Islamic architecture on stylistic ground‖. Hence, the ASI report

delineated those architectural recoveries which belong to Islamic architecture of

the sixteenth century. Even taking the opinion of DW 20/5 and PW 32 that the

recoveries may also be consistent with a palace or a Buddhist and Jain

structures, the noteworthy point that emerges is that those fragments are of a

non-Islamic origin (except for those specific artefacts which have been identified

to be of an Islamic origin by ASI, as noted above).

Once this is the position, the ASI report has to be read and interpreted in its

entirety. It would be unfair to reject the conclusions which have been arrived at by

an expert team which carried out the excavation under the orders of the High

Court and has carefully analysed the recoveries from distinct perspectives. Yet

the report must be read contextually, allowing for genuine divergences that arise

on matters of interpretation.

The formulation of conclusions by the ASI was preceded by a careful analysis of

the excavated materials. Individually, a different view may be possible in respect

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of discrete recoveries or finds. However, the test which the court must apply is

whether on a preponderance of probabilities, the conclusions which have been

drawn by the ASI are justified.

505. Though bias and mala fides were sought to be attributed to the ASI

during the course of the proceedings before the High Court, Ms Arora, learned

Senior Counsel has specifically submitted that no case to that effect is being

pressed in the present appeals. In fact, when Mr Vaidyanathan attributed a

submission of bias or mala fides to Ms Arora with respect to the task undertaken

by the ASI, Ms Arora intervened to state that she had not made any submission to

that effect.

One of the criticisms of the ASI report is that no analysis was made of the

recovery of bones and that thermoluminescence dating of pottery was not carried

out. Justice Agarwal has noted that an analysis of the bones would have been

instructive if they were recovered from the regular layer. However, in this case,

they have been recovered from a filling and hence were held to ―lose

significance and importance‖. It also appears that the facility for

thermoluminescence dating of pottery was not available at the Institute at

Lucknow and since charcoal samples were available for C14 dating, further

analysis of the pottery was not carried out. This explanation apart, the deficiency

is not sufficient to discredit the report in its entirety.

The standard of proof

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506. The court in a civil trial applies a standard of proof governed by a

preponderance of probabilities. This standard is also described sometimes as a

balance of probability or the preponderance of the evidence. ―Phipson on

Evidence‖ formulates the standard succinctly: If therefore, the evidence is such

that the court can say ―we think it more probable than not‖, the burden is

discharged, but if the probabilities are equal, it is not.252 In Miller v Minister of

Pensions253, Lord Denning, J (as the Master of Rolls then was) defined the

doctrine of the balance or preponderance of probabilities in the following terms :

―(1)… It need not reach certainty, but it must carry a

high degree of probability. Proof beyond reasonable
doubt does not mean proof beyond the shadow of doubt.
The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave only a
remote possibility in his favour which can be dismissed with
the sentence, ―of course it is possible, but not in the least
probable‖ the case is proved beyond reasonable doubt, but
nothing short of that will suffice.‖
(Emphasis supplied)

The law recognises that within the standard of preponderance of probabilities,

there could be different degrees of probability. This was succinctly summarized

by Denning, LJ in Bater v Bater254,where he formulated the principle thus :

―So also in civil cases, the case must be proved by a

preponderance of probability, but there may be degrees of
probability within that standard. The degree depends on that
subject matter.‖
(Emphasis supplied)

The definition of the expression ‗proved‘ in Section 3 of the Evidence Act is in the
252 Phipson on Evidence, 16th Edn. at pgs 154-155
253 (1947) 2 ALL ER 372
254 [1951] P. 35

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following terms:

―Proved‖ .—A fact is said to be proved when, after

considering the matters before it, the Court either believes it
to exist, or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case, to
act upon the supposition that it exists.‖

Proof of a fact depends upon the probability of its existence. The finding of the

court must be based on:

A. The test of a prudent person, who acts under the supposition that a fact

exists; and

B. In the context and circumstances of a particular case.

Analysing this, Y V Chandrachud J (as the learned Chief Justice then was) in Dr

N G Dastane v S Dastane255 held :

―The belief regarding the existence of a fact may thus be

founded on a balance of probabilities. A prudent man faced
with conflicting probabilities concerning a fact-situation will act
on the supposition that the fact exists, if on weighing the
various probabilities he finds that the preponderance is in
favour of the existence of the particular fact. As a prudent
man, so the court applies this test for finding whether a fact in
issue can be said to be proved. The first step in this
process is to fix the probabilities, the second to weigh
them, though the two may often intermingle. The
impossible is weeded out at the first stage, the
improbable at the second. Within the wide range of
probabilities the court has often a difficult choice to make but
it is this choice which ultimately determines where the
preponderance of probabilities lies. Important issues like
those which affect the status of parties demand a closer
scrutiny than those like the loan on a promissory note:
―the nature and gravity of an issue necessarily
determines the manner of attaining
reasonable satisfaction of the truth of the issue [ Per
Dixon, J. in Wright v. Wright, (1948) 77 CLR 191, 210] ‖; or as
said by Lord Denning, ―the degree of probability depends
on the subject-matter. In proportion as the offence is grave,
so ought the proof to be clear [Blyth v. Blyth, (1966) 1 AER 524,

255 (1975) 2 SCC 326

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536] ‖. But whether the issue is one of cruelty or of a loan on a

pronote, the test to apply is whether on a preponderance of
probabilities the relevant fact is proved. In civil cases this,
normally, is the standard of proof to apply for finding whether
the burden of proof is discharged.‖
(Emphasis supplied)

The Court recognised that within the standard of preponderance of probabilities,

the degree of probability is based on the subject matter involved.

In State of U P v Krishna Gopal256, this Court observed:

―26. The concepts of probability, and the degrees of it,

cannot obviously be expressed in terms of units to be
mathematically enumerated as to how many of such units
constitute proof beyond reasonable doubt. There is an
unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. Forensic
probability must, in the last analysis, rest on a robust
common sense and, ultimately, on the trained intuitions
of the Judge.‖
(Emphasis supplied)

507. On the basis of the ASI report, Justice Sudhir Agarwal entered the

following findings of fact:

―4055. The ultimate inference, which can reasonably be

drawn by this Court from the entire discussion and material
noticed above, is: (i) The disputed structure was not raised on
a virgin, vacant, unoccupied, open land;
(ii) There existed a structure, if not much bigger then at least
comparable or bigger than the disputed structure, at the site
in dispute;
(iii) The builder of the disputed structure knew the details of
the erstwhile structure, its strength, capacity, the size of the
walls etc. and therefore did not hesitate in using the walls etc.
without any further improvement;
(iv) The erstwhile structure was religious in nature and that
too non-Islamic…;

256 (1988) 4 SCC 302

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(v) The material like stone, pillars, bricks… of the erstwhile

structure was used in raising the disputed structure; and
(vi) The artefacts recovered during excavation are mostly
such as are non-Islamic i.e. pertaining to Hindu religious
places, even if we accept that some of the items are such
which may be used in other religions also. Simultaneously no
artefacts etc., which can be used only in Islamic religious
place, has been found.‖

Justice S U Khan placed no credence on the ASI report. The reasons which led

the judge to that conclusion are specious. Firstly, the learned Judge observed that

the finding that there was evidence of continuity in structural phases from the

tenth Century onward upto the construction of the disputed structure is directly in

conflict with the pleadings, gazetteers and history books. This omnibus finding

has no factual basis. The purpose of the excavation was to enable an assessment

to be made by the court to determine whether the disputed structure had been

constructed on the site of a pre-existing temple. Whether after the construction of

temples by Vikramaditya and till the construction of the mosque any construction

activity had been carried out under the disputed structure was a matter which

could be deduced after the excavation was carried out at the site.

The second reason was that in case a temple had been demolished for

constructing a mosque, the super structure of the temple ―would not have gone

inside the ground‖. This again is pure conjecture. The learned judge then

disregarded the architectural fragments on the ground that it is only in the case of

a natural calamity that such material ―goes down inside the ground‖ and

otherwise, a ruined building would be buried under the ground after centuries. The

judge observed that there is neither any requirement nor any practice that even in

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the foundation of a temple, there must be such items which denote the nature of

the super structure. These observations and findings of Justice S U

Khan are hypothetical and without any basis.

The third learned judge, Justice D V Sharma has relied on the findings contained

in the ASI report.

508. The conclusions which have been arrived at by Justice Sudhir Agarwal on

the ASI report, as extracted above are worthy of acceptance. There is adequate

basis in the material contained in the ASI report to lead to the following

conclusions:

(i) The Babri mosque was not constructed on vacant land;

(ii) The excavation indicates the presence of an underlying structure below the

disputed structure;

(iii) The underlying structure was at least of equal, if not larger dimensions than

the disputed structure;

(iv) The excavation of the walls of the underlying structure coupled with the

presence of pillar bases supports the conclusion of the ASI of the presence

of a structure underlying the disputed structure;

(v) The underlying structure was not of Islamic origin;

(vi) The foundation of the disputed structure rests on the walls of the underlying

structure; and

(vii) Artefacts, including architectural fragments which have been recovered

during excavation have a distinct non-Islamic origin. Though individually,

some of the artefacts could also have been utilised in a structure of

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Buddhist or Jain origins, there is no evidence of the underlying structure

being of an Islamic religious nature. The conclusion which has been drawn

by the ASI that the nature of the underlying structure and the recoveries

which have been made would on stylistic grounds suggest the existence of

temple structure dating back to the twelfth century A.D. would on a balance

of probabilities be a conclusion which is supported by evidence. The

conclusion cannot be rejected as unsupported by evidence or lying beyond

the test of a preponderance of probabilities, which must govern a civil trial.

Caveats

509. Having said this, we must also read the ASI report with the following caveats:

(i) Though the excavation has revealed the existence of a circular shrine,

conceivably a Shiva shrine dating back to the seventh to ninth century A.D,

the underlying structure belongs to twelfth century A.D. The circular shrine

and the underlying structure with pillar bases belong to two different time

periods between three to five centuries apart;

(ii) There is no specific finding that the underlying structure was a temple

dedicated to Lord Ram; and

(iii) Significantly, the ASI has not specifically opined on whether a temple was

demolished for the construction of the disputed structure though it has

emerged from the report that the disputed structure was constructed on the

site of and utilised the foundation and material of the underlying structure.

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The unanswered question of demolition

510. The ASI report has been criticised on the ground that it fails to answer the

question as to whether the disputed structure of a mosque was constructed on

the demolition of a pre-existing temple at the site.

The High Court dealt with this objection in the following observations of Justice

Sudhir Agarwal:

―3990. ASI, in our view, has rightly refrained from recording

a categorical finding whether there was any demolition or not
for the reason when a building is constructed over another
and that too hundreds of years back, it may sometimes be
difficult to ascertain…in what circumstances building was
raised and whether the earlier building collapsed on its own or
due to natural forces or for the reason attributable to some
persons interested for its damage. Sufficient indication has
been given by ASI that the building in dispute did not have its
own foundation but it was raised on the existing walls. If a
building would not have been existing before construction of
the subsequent building, the builder might not have been able
to use foundation of the erstwhile building without knowing its
strength and capacity of bearing the load of new structure.
The floor of the disputed building was just over the floor of
earlier building. The existence of several pillar bases all show
another earlier existence of a sufficiently bigger structure, if
not bigger than the disputed structure then not lessor than
that also.‖

The High Court noted that the floor of the disputed structure was situated just

above the floor of the earlier building. The ASI report has opined that the disputed

structure did not have its own foundation and was raised on existing walls.

Moreover, the existence of pillar bases has been utilised to sustain an inference

of a larger structure on which the disputed structure had been constructed.

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The High Court justified the inability of ASI to come to a specific finding on

whether an erstwhile structure of a Hindu religious origin was demolished for the

construction of the mosque. The High Court noted that when a structure has been

constructed several hundred years ago, it is difficult to conclude with any degree

of certainty whether the underlying structure on whose foundations it rests had

collapsed due to natural causes or whether the structure was demolished to give

way to the structure of a mosque. This would indicate that the existence of the

ruins of an underlying structure is not reason in itself to infer that the structure had

been demolished for the construction of a new structure which rests on its

foundations. ASI, as an expert body refrained from recording a specific finding on

whether the underlying structure was demolished for the purpose of the

construction of a mosque. Assuming that an inference in regard to demolition

could have been made several hundred years later, ASI evidently did not find

specific evidence to suggest that a structure had been demolished for the

purpose of constructing a mosque. The report submitted by ASI is silent on this

facet. The High Court, therefore, indicated that there could be one of two

hypotheses: either that the underlying structure had collapsed due to natural

forces or that its demolition was the work of human intervention as part of the

process of building a mosque on its foundations. Though, the ASI did not venture

to enter a specific finding, the High Court seems to infer that since the foundation

of the erstwhile structure was used for the construction of a mosque, the builder

of the mosque would have been aware of the nature of the erstwhile structure and

its foundation while constructing the mosque. This is an inference which the High

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Court has drawn though that is not a specific finding which the ASI has returned in

the course of its report.

511. Consequently, when the ASI report will be placed in balance in terms of

its evidentiary value in the course of this judgment, it is crucial for the court to sift

between what the report finds and what it leaves unanswered. The ASI report

does find the existence of a pre-existing structure. The report deduces 17 rows of

pillar bases (a total of 85 of which 50 were exposed in sections, in parts or whole).

The report concludes on the basis of the architectural fragments found at the site

and the nature of the structure that it was of a Hindu religious origin. The report

rejects the possibility (urged by the Sunni Central Waqf Board) of the underlying

structure being of Islamic origin. But the ASI report has left unanswered a critical

part of the remit which was made to it, namely, a determination of whether a

Hindu temple had been demolished to pave way for the construction of the

mosque. ASI‘s inability to render a specific finding on this facet is certainly a

significant evidentiary circumstance which must be borne in mind when the

cumulative impact of the entire evidence is considered in the final analysis.

512. There is another aspect which needs to be flagged at this stage and

which will be considered when the question of title is evaluated. That issue is

whether a determination of title can rest on the basis of the ASI findings as they

stand. Whether the construction of a mosque in 1528 A.D. (over 450 years ago)

on the foundations of an erstwhile religious structure (dating back to the twelfth

century A.D.) can result in a finding on the question of title is a distinct matter. At

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this stage, it will suffice to note that a determination of title was not obviously

within the remit of ASI. This is a matter on which the court will need to draw a

considered and objective conclusion when it deals with the issue of title later in

this judgment.

N.10 Nature and use of the disputed structure: oral evidence

513. The plaintiffs in Suit 5 produced nineteen witnesses. A broad

categorisation of these witnesses is indicated below:

I. Witnesses on facts:

i. OPW 1 Mahant Paramhans Ram

Chandra Das ii. OPW 2 Shri

Devaki Nandan Agarwal iii.

OPW 4 Harihar Prasad Tewari

iv. OPW 5 Shri Ram Nath Mishra

Alias Banarsi Panda

v. OPW 6 Shri Housila Prasad Tripathi

vi. OPW 7 Ram Surat Tewari vii. OPW 12 Shri Kaushal

Kishore Mishra viii. OPW 13 Narad Saran

II. Witnesses in relation to Vishnu Hari Inscriptions:

i. OPW 8 Ashok Chandra Chatterjee

ii. OPW 10 Dr. K.V. Ramesh iii.

OPW 15 Dr. M.N. Katti

III. Expert witnesses – Historians

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i. OPW 9 Dr. T.P. Verma ii.

OPW 11 Dr. Satish Chandra

Mittal

IV. Expert witnesses - Religious matters

i. OPW 16 Jagadguru
Ramanandacharya – Swami Ram

Bhadracharya Ji

V. Expert witnesses – Archaeologists

i. OPW 3 Dr. S.P. Gupta ii.

OPW 14 Dr. Rakesh Tewari iii.

OPW 17 Dr R. Nagaswami iv.

OPW 18 Sri Arun Kumar

Sharma

v. OPW 19 Sri Rakesh Dutta Trivedi.

The depositions of the witnesses of fact need to be analysed to determine the

nature and use of the disputed building. The witnesses have spoken also about

the basis of their faith about the birth-place of Lord Ram.

The Hindu witnesses

514. Mahant Paramhans Ram Chandra Das (OPW-1): Mahant Paramhans

Ram Chandra Das was ninety-years old and the Mahant of All India Shri Panch

Ramanandi Digamber Ani Akhara and Digamber Ayodhya Akhara, Baithak. The

witness deposed that according to Valmiki‘s Ramayan, Lord Ram was born in

Ayodhya. According to him:

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―It is mentioned in Valmiki Ramayan that Lord Ram was

born in Ayodhya. Description of Ayodhya has been made in
Vedas,
Upanishads, in codes (Samhitas) and in eighteen Puranas, in
Smritis; and in recognized works of Sanskrit literature of
Bharat. In all these, Ayodhya has been accepted as the
birthplace of Lord Ram. This is the same Ayodhya, which
exists at present. Lord Ram was born here.‖

The witness stated that the Skand Puran, in a chapter relating to the importance

of Ayodhya, contains a reference to the birth-place of Lord Ram. He stated that

the ‗Garbh Grih‘ is at the disputed place where the idol of Ram Lalla was in

existence at the time of his deposition.

According to the witness, he came to Ayodhya after leaving home when he was

fourteen to fifteen years of age and since then he had seen people seeking

darshan at several places in Ayodhya including at Ram Janmabhumi. According

to the witness, between 1934-1947, no obstacle was placed in the way of worship

of Lord Ram at Ram Janmabhumi and since the time when he came to Ayodhya,

he had not seen namaz being offered in the disputed complex. He spoke of a

door of iron bars in the courtyard of Ram Janmabhumi and of the riots of 1934.

The witness stated that there were engravings containing depictions of Gods and

Goddesses on the pillars under the dome which were worshipped. He stated that

the place below the ―middle dome‖ is the place where Lord Ram was born, and

this represented the ‗Garbh Grih‘. The witness deposed to the importance of

Ayodhya in religious texts. Deposing to his belief, the witness stated:

―In this connection, there is a reference in Ram Charit

Manas that ―uttat dishi bahi Saryu pavini (i.e. Saryu river
flows in the North)‖. This is an authentic statement about the
location of Saryu river. There is a statement in Ramayan, i.e.

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Ram Charit Manas [Ramcharitmanas] regarding the

importance of
Ayodhya that ―Avadh puri mam puri suhaisini (The city of
Avadh is my dear city)‖ which makes it clear that Ayodhya is
the birthplace of Lord Ram. It has also been mentioned here
that people living here are very dear to me. The place, where
a person is born, is called his birthplace. It has also been
mentioned in Valmiki Ramayan that the land of my birth is
dearer to me than Lanka, which is built of gold, because
birthplace is superior even to heaven.‖

Again, according to the witness:

―The faith of Hindus of the entire world over towards Ram
Janam Bhoomi Sthal is similar to that of Muslims towards
Kaba. There is only one Ram Janam Bhoomi temple in whole
of the world, whereas there are thousands of temples of Lord
Ram.‖

During the course of his examination, the witness was shown an album

containing black and white and coloured photographs pertaining to the disputed

site. He identified the figures of lions and a peacock and the depictions of Lord

Ganesh, Lord Shankar and of a Nandi:

―Picture No. 20 of album of black and white pictures

prepared by the Archaeological Department of Uttar Pradesh
and filed in OOS 4/1989 about the disputed site was shown to
the witness. The witness, after seeing the picture, said that
there is a figure of a lion on both sides of the upper part of the
gate. Then picture nos. 37 to 42 of the coloured album was
again shown to the witness. After seeing it, witness said that a
picture of peacock has been painted on the northern gate.
The picture no. 58 of the coloured album was shown to the
witness. After seeing it, the witness said that it is about the
cave temple. The statues of Ganesh and Shanker, which are
installed on the eastern-southern corner of the platform
(Chabutra), have been shown in these pictures. The above
pictures include the picture of Nandi and Lord Shanker also.
After seeing picture no. 61 of the coloured album, the witness
said that it is a picture of above – mentioned Gods.‖

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The witness deposed to the inventory made by the Commissioner after the

attachment took place under Section 145 and to the presence of footprints and

other sources of worship including Ramchabutra (in the outer courtyard).

According to the witness, no Muslim had offered namaz in the mosque after

1934. Speaking of his belief and faith, the witness stated:

―The whole place, being the birthplace of Lord Ram, is a

symbol of belief and faith for me.‖

Speaking of the ceremony associated with the consecration of an idol (pran

pratishtha), the witness stated that a minimum of 24 hours and a maximum of 3

days are dedicated to the performance of the ceremony. During the course of his

cross-examination by Mr Zafaryab Jilani, learned Senior Counsel appearing for

the Sunni Central Waqf Board, on 17 January 2000, the witness stated:

―From the time, I first came to Ayodhya till 1934, I had been
going to Ram Janam Bhoomi (disputed place) regularly every
day. At that time, I used to go to that portion of the disputed
place (building) where pillars were installed. There were two
pillars installed at the eastern gate. I used to have ‗Darshan‘
of them also. Statues of Gods were engraved on those
pillars…
Two pillars of black stone were installed inside the main
building. Volunteer: that pictures of Gods were engraved on
stones thereon. There was a statute of Hanumanji on one of
the two pillars of eastern gate and the second statue was a
broken one, which was also of some God or Goddess. There
was a wall of iron bars after the main gate and there were
three gates thereafter in the main building and pillars of black
stones were installed in all the three gates.‖

The witness alluded to the location of the pillars of black Kasauti stones and to the

depiction of Hindu Gods and Goddesses on them:

―Question:- What was the location of the pillars of black

stones installed inside?
Answer:- There were four pillars in every gate.

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There were statues of Gods and Goddesses in the four

pillars in the southern gate. Some of them were clear and
some were not. I cannot say that statue of which God or
Goddess was engraved on southern gate or any other
gate. Before 1934, I used to have ‗Darshan‘ of Garbh
Griha‘ situated under the middle ‗shikhar‘ after Ram
Chabutra. Besides, I used to have darshan of the statues
engraved on the pillars and offer ‗tulsi‘ leaves.‖

The witness made a distinction between ‗Garbh Grih‘ and the outer platform:

―Question :- In addition of disputed building and the platform

outside it, do you consider the land adjacent to it as ‗garbh
griha‘. By other platform, I mean the platform outside the
disputed building.
Answer :- ‗Garbh Griha‘ is the place, where Ram Lalla is
seated (Virajman) at present. Outer platform is outside the
disputed place.‖

According to the witness, the ‗Garbh Grih‘ represented the birth-place of Lord

Ram and this was the place where on 23 December 1949, the idol was installed

after removing it from the Chabutra:

―The place, which I describe as ‗garbh griha‘, is according

to my belief and according to the belief of all Hindus, birth
place of Ram Chandra ji. I consider that place, where on 23 rd
December 1949 idol was installed after removing it from the
chabutara, as birth place and I used to consider that place as
birth place before installation of the idol there.

Question :- Can that place, which you describe as birth place

according to your belief, be 10-15 hands away on either side
of the middle dome place?

Answer:- No. The place where the idol is placed, is an

authentic place and the whole Hindu community believes in
that very place. There is no scope of any doubt. There cannot
be a distance of even two – four feet in the location of this
place.
The basis of this belief is that Hindus have been having
‗darshan‘ of this place as Janambhumi since centuries.‖

Though an effort was made to elicit from the witness an answer to whether the

birth-place could be situated at a short distance away from the middle dome, he

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specifically answered that question in the negative. The features which stand out

from the evidence of OPW-1 are as follows:

(i) The witness was in Ayodhya since the age of 14 or 15 spanning over three

quarters of a century;

(ii) The witness spoke of his faith and belief that the ‗Garbh Grih‘ under the

middle dome represented the place where Lord Ram was born;

(iii) The witness spoke of the offer of worship by devotees;

(iv) The presence of the iron railing was accepted; and

(v) The witness alluded to the shifting of the idols on 22/23 December 1949.

515. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the

Sunni Central Waqf Board, has sought to draw the attention of this Court to

certain contradictions which were elucidated in the course of the

crossexamination which have been catalogued below:

―a) On December 22/23, 1949, an idol of Lord Ram

appeared in the early hours of the morning. After this
miraculous development at the place, the idol installed on
Ram Chabutra was removed and shifted to ‗Garbh Grih‘.
(b) Idol of only Ram Lalla was installed at Ramjanma
Bhoomi... this statement is in contradiction of the
statement made by several other witnesses who have
stated that other idols were also installed.
(c) There was no idol of Ram Lalla below the top when it
fell down. This shows that the demolition of the
disputed structure which was in utter violation of the
order passed by this Hon‘ble Court, was also pre-
planned, just like the desecration on December 22-23
1949.
(d) First states that the whole of Parikrama was under the
‗Garbha Griha‘, later says Parikrama was on the outer side.‖

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These contradictions do not render the substratum of the evidence on the facets

which have been highlighted above untrustworthy. The witness was ninety years

of age when he deposed and had been associated with the disputed site for over

seven decades. His evidence, in regard to the faith and belief of the Hindus in

regard to the birth-place of Lord Ram, the sanctity attached to the place under the

middle dome and the offerings of worship by devotees are significant facets of his

testimony.

516. Shri Devaki Nandan Agarwal (OPW–2): Shri Devaki Nandan Agarwal

was eighty years of age when his Examination-in-Chief was recorded between 16

and 18 June 2001. The witness was the third plaintiff in Suit 5 suing as the next

friend of the deities. The cross-examination of the witness could not be completed

upon the death of the witness but Dr Dhavan stated that nonetheless, he is

entitled to rely upon the evidence of the witness. Dr Dhavan has adverted to the

testimony of OPW2, particularly in regard to the association between the Vishva

Hindu Parishad and the Ram Janmabhumi Nyas. Moreover, in regard to the

shifting of the idols, Dr Dhavan, in his note of submissions highlighted the

following facets pertaining to the evidence of the witness:

―i. The vigrah of Ram Lalla was seated in a cradle and

installed on Ram Chabutra. This vigrah was movable and
therefore in accordance with the wishes of the devotees, it
was shifted from Ram Chabutra and installed under the
central dome.
ii. Till December 22, 1949, the idols were not inside the
disputed building.
iii. There was an idol of Ram Lalla at the Chabutra which
was later placed under the dome in the disputed place.‖

Besides the above facets, Dr Dhavan relied on:

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(i) The admission of the witness that he did not worship idols and there was

no puja sthan in his house;

(ii) The inability of the witness to state the name of the idol or the number of

times he had obtained darshan in 1984-85;

(iii) The statement of the witness regarding his belief that the ‗Garbh Grih' was

situated at that place where the temple had been demolished was hearsay;

and

(iv) The reference by the witness to the Janmabhumi temple on the northern

side or the disputed site which was bifurcated upon the construction of a

road by the British administration.

Challenge to credentials of the witness

517. OPW2, who is the third plaintiff in Suit 5 has stated in the plaint that he is a

Vaishnavite. In the course of his Examination-in-Chief he reiterated that he is a

Vaishnavite and a Hindu and that he was suing as a next friend of the first and

second plaintiffs in Suit 5 with no personal or vested interest but an intent of

service to the deity. He stated that during 1932-1934 whenever he went to the

disputed place with his mother, he saw the worship of the idol of Lord Ram at

Ramchabutra. According to him, there was a picture of Lord Ram inside the

disputed structure and the priest took flowers and garlands from worshippers and

offered them from a distance. He referred to the presence of the stone pillars at

the gate and inside the disputed structure. However, according to him, as a result

of the locks which were affixed on the gate to the inner premises of the disputed

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structure, the police did not allow worshippers to enter and worship was from

outside the gate:

―There were two pillars of touchstone at the gate of the

disputed structure, which were used for its construction after
demolishing the temple which earlier existed there. There
were two similar pillars also inside the structure, which could
be seen from a distance. But two locks were affixed on the
gate of the inner premises of the disputed structure and
because of them, the police did not allow anybody to enter
inside and worship etc. of Bhagwan Shri Ram Lalla, who was
Virajman inside, was done from outside the gate and nonstop
recitation and chanting of name of Lord was being
continuously done in the outer premises.‖

The witness has been candid in admitting that with the locks being placed on the

gate of the inner premises, Hindu devotees offered worship from outside since

the police did not permit entry into the inner courtyard.

518. Dr Dhavan‘s attempt to discredit the witness as a person who was not a

worshipper is not borne out from the cross-examination of OPW2. During the

course of his cross-examination, he stated that between 1940 and 1952, he

conducted the business of a brick kiln and worked as a contractor while

undertaking his studies. The witness was candid enough to state that during the

time he was carrying on business, he had no time to take interest in religion and

did not worship an idol. However, he spoke about his worship of Hindu religious

deities on the occasion of religious festivals. This part of the cross-examination

must be read in the context of a particular phase of the life of the witness when he

carried on business, before he entered the legal profession. It would be incorrect

to infer from the answers elucidated during the course of crossexamination that

the witness was not a believer or worshipper of Lord Ram. The pleadings in the

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Suit and his evidence establish the personal credentials of the witness as a

person genuinely interested in the deity of Lord Ram.

519. Harihar Prasad Tewari (OPW-4): Harihar Prasad Tewari was eighty-

five years of age on the date of his Examination-in-Chief on 1 August 2002. He

was born in 1917, came to Ayodhya in 1938, where he lived for four years to

study Ayurveda. The witness stated that he used to visit Ram Janmabhumi

temple. The witness has been principally relied upon by the plaintiffs in Suit 5 in

support of the belief that the disputed site was the birth-place of Lord Ram. In the

course of his Examination-in-Chief he stated:

―Ayodhya is an ancient and the holiest Pilgrimage for Hindus

where Parambrahma Parmeshwar Bhagwan Vishnu
incarnated as Sri Ram, son of King Dashratha. The followers
of Hinduism have the faith from the time immemorial that
Bhagwan Vishnu incarnated at Ayodhya as Lord Sri Ram.
This place is worship-able. Owing to this trust and faith
people used to visit for Darshan and Parikrama (taking round)
of Shri Ram Janam Bhoomi. My family members, my
grandfather and elderly people, saints and hermits of
Ayodhya, during my study there from 1934 to 1938, used to
say that Bhagwan Vishnu had incarnated as Bhagwan Shri
Ram at this very place and this is Sri Ram Janam Bhoomi.
Based on this faith and belief I have been going to Shri Ram
Janam Bhoomi for Darshan. After completing my study,
whenever I came to Ayodhya I used to go there for Darshan
invariably. I mostly lived in Sugreev Quila, Ram Kot, Ayodhya
for about last 8-9 years and usually go to the Ram Janam
Bhoomi for having Darshan.‖

The witness has spoken about the entry to the outer courtyard through the two

gates – Hanumat Dwar and Singh Dwar, the presence of Sita Rasoi,

Ramchabutra and the Bhandar within. He has referred to pilgrims visiting in large

numbers particularly on the occasion of Chaitra Ramnavami and other religious

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festivals and to parikrama being performed daily by hundreds of devotees. The

witness stated that he had never seen any Muslim offering namaz within the

disputed site. The witness stated:

―During 1934-38, I frequently visited the disputed site to

have a Darshan of Bhagwan Ram. Inside the building at the
disputed site there was no idol of Bhagwan Ram seated, but
his photo hung on a wall which was visible from the outside of
the gate. The gate was locked so I had seen that photo from
outside.‖

The witness has thus admitted that worship was from outside the locked gate of

the inner courtyard for Hindu devotees.

The witness spoke of the worship in the outer courtyard between 1934 and 1938:
―There was a door on the north side of the precincts. This
door was known as Singh Dwar. While going inside Singh
Dwar, on left side, on a platform there was rolling board
(Chauka), Belan (rolling pin), Hearth (chulha) and Charan
Chinha (foot marks) etc. Charan Chinhas were in four pairs.
According to belief these Charan Chinhas were of Ram,
Lakshaman, Bharat and Shatrughan. All the above things
existed on the platform during 1934 to 38. Worship was
performed by the priests at the platform also. At first the
priests did worship at the Ram Temple Platform and then
walked to above platform for worship.‖

The doors leading to what he described as the sanctum sanctorum were stated to

have been closed during 1934-1938. According to the witness, worship was

offered outside the sanctum sanctorum. On the source of his religious faith, the

witness stated that this was not based on any religious text but having heard

about the Janmabhumi of Lord Ram ―from an old aged person‖. This is no

reason to discredit the genuineness of the belief and faith of OPW4. He has

specifically deposed to the regularity with which he visited the Janmabhumi to

offer worship and this aspect of his evidence has not been shaken. The witness

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fairly stated that he had not gone within the disputed building because it was

locked and that after 1938 while entry was forbidden, arrangement for darshan

was made at the

Chabutra.

520. Shri Ram Nath Mishra Alias Banarsi Panda (OPW-5) : On 6 August 2002,

when the Examination-in-Chief of the witness was recorded, he was ninetyone

years old. He stated that he was married to the daughter of Pandit

Ramkrishna Upadhya who was a reputed ―Teerth-Purohit‖. He deposed to

having worshipped at Ram Janmabhumi and of performing the parikrama since

his marriage. Since 1932, he together with his spouse came to Ayodhya and

started managing and looking after the work performed by his father-in-law

including of about a hundred ghats which were owned by him. The witness stated

that on Chaitra Ram Navami nearly 10 to 15 lakh devotees of Lord Ram visited

Ayodhya and after a bath in the Saryu river proceeded for darshan to Ram

Janmabhumi, Kanak Bhawan and Hanuman Garhi. He stated that thousands of

devotees visited from villages for seeking darshan at the Janmabhumi. The

witness stated that the importance of Ayodhya has been described in the

Brahmpuran, Skand Puran and Barahpuran.

Some of the salient aspects of the examination of OPW-5 are:

(i) The witness adverted to the two doors providing entry into what he

described as the Ram Janmabhumi premises. The first was Hanumat Dwar

from the east and the second was Singh Dwar on the northern side;

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(ii) On both corners of the gate of Hanumat Dwar, there were black stone

pillars with pictures of flowers, leaves and deities. Similarly, on the upper

side of Singh Dwar there was a picture of a ‗garud‘ flanked by lions on

either side;

(iii) On entering through the main gate called Hanumat Dwar, there was a

platform towards the south called the Ramchabutra on which were placed

the idols of and associated with Lord Ram. On the south-eastern corner of

Ramchabutra, there were idols under a peepal tree including those of Lord

Ganesh, Lord Shanker and other deities. Inside the main gate towards the

northern side, there was a thatched enclosure known as the Bhandar or

store in which provisions were stored;

(iv) Inside the grill-brick wall towards the west of Ramchabutra there was, what

he described as the ‗Garbh Grih‘ temple covered by three domes and it

was a matter of belief that the site below the central dome was the

birthplace of Lord Ram. The witness and other Hindu devotees would seek

the darshan of Ram Janmabhumi at the site, which was considered to be

sacrosanct;

(v) Within the same complex was situated the Sita Rasoi which had a Chauka-

Belan, hearth and footprints;

(vi) Inside the domed structure, there were pillars of black touchstone which

had images of flowers, leaves and deities. Between 1928-1949, he had

seen the picture of Lord Ram hanging inside the ‗Garbh Grih‘ and he

claimed to have seen the idol of Lord Ram until 1949;

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(vii) In the grill-brick wall, there were two doors which remained locked and

which were opened by the pujaris of Nirmohi Akhara. Darshan of the

‗Garbh Grih‘ was arranged for the pilgrims from the railing where a

donation box was kept;

(viii) Speaking of the worship at the ‗Garbh Grih‘, the following answers were

elicited during the course of the cross-examination of the witness:

―For entry into the ‗Garbhgraha‘, there were two doors in
the wall. Below the three shikhars were the pillars of
touchstone. These pillars were similar to the pillars flanking
the Hanumat
Dwar. In the ‗Garbhgraha‘ was the idol made of black stone
of approximated 7‖ – 8‖ height. The idol was made of black
stone. It is difficult to say whether it was made of touchstone
because we used to see it from outside. This was the idol of
Sita and Lord Rama in one stone. Apart from that I do not
remember whether there was Lord Saligram or not because I
used to see it from outside and it used to remain locked. I had
not seen the idol or Rambhakt Hanuman Ji inside. The key of
the lock used to be in the possession of the people of Nirmohi
Akhara and whose pujaris would open the lock, close the
lock, and perform aarti puja and sounded bells and bugles.
Whenever I went there, the devotees made the offerings from
outside only and accepted the ‗prasad‘. They would not go
in. From 1932 to 1949, I saw things happening in the same
way.‖

OPW-5 spoke of the locks on the gate of the inner premises, as noticed earlier.

OPW-5 also noted worship being offered from outside but according to him, the

keys were with Nirmohi Akhara.

(ix) During the course his cross-examination by Mr Zafaryab Jilani, the witness

spoke about three types of parikrama namely:

(a) Fourteen Kosi;

(b) Five Kosi; and

(c) Antargrahi

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(x) Again, during the course of the cross-examination by Mr Jilani, the witness

stated:

―At the disputed premises, I used to have darshans at three

places- first, at the Chabutra on the left, then of the domed
(shikhar wale) ‗Garbhgraha‘ from the railing outside and then
north to have darshan of Sita Rasoi.‖

(xi) The witness stated that between 1928 and 1949, two gates in the wall of

the railings were locked as a result of which darshan was obtained only

from the railings from where offerings of flowers were made.

521. Dr Rajeev Dhavan has made an earnest effort to discredit the evidence

of the witness on the basis of his inability to identify whether the photographs

which were shown to him pertained to the disputed site. The witness stated that in

1990, a monkey caused the collapse of the disputed building. This answer is

evidently a figment of his imagination and he did not furnish a true account of the

demolition. The inability of the witness to respond to the photographs shown by

the cross-examiner is certainly one aspect which has to be borne in mind but that

cannot be a ground to discredit the witness. At the date of his cross-examination,

the witness was over 90 years of age and the contradictions must be viewed

keeping in mind the entirety of the evidence. The explanation of the witness in

regard to the collapse of the structure is indeed far-fetched. However, an overall

reading of the evidence would indicate that the answers which were elicited

during the cross-examination of the witness by Mr Jilani leaves the substratum of

the Examination-in-Chief of the witness on the nature of the worship by Hindu

devotees at the site unshaken. The witness was conversant with the nature and

manner of worship and there can be no manner of doubt either about his

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presence at the disputed site as a worshipper or awareness of the modalities

followed by the devotees including himself in the course of seeking worship at the

disputed site.

522. Housila Prasad Tripathi (OPW-6): The witness was eighty years of

age on 13 August 2002 on the date of his Examination-in-Chief. His village was

30 to 35 kilometres from Ayodhya which he visited in December 1935 for the first

time when he was between the age of twelve-thirteen. The witness stated that his

uncle was receiving education between 1932 and 1945 at Sanskrit Vidyalaya at

Ayodhya. During this period, the witness came to Ayodhya three to four times a

year. Thereafter also, the witness stated that he had visited Ayodhya for the

purpose of darshan at Ram Janmabhumi. During the course of his Examinationin-

Chief, the witness spoke about darshan at Ram Janmabhumi:

―At the time of Ram Navmi, lakhs of people had come to

Ayodhya from every nook and corner of the country. Majority
of the pilgrims and visitors to Ayodhya come for the darshan
of Ram Janam Bhoomi and offer prayers there. After having
darshan of Shri Ram Janam Bhoomi, I have seen thousands
of people doing Parikrama of the entire Shri Ram Janam
Bhoomi premises from outside. I, alongwith my father and
grand mother also had Parikrama of the entire Shri Ram
Janam Bhoomi premises after darshans. Due to old age, my
grand mother could do Parikrama only once whereas I and
my father completed the Parikrama of Shri Ram Janam
Bhoomi five times.‖

The salient aspects of his evidence are as follows:

(i) The witness spoke of the close proximity of Ramchabutra to the railing

behind which there was a three domed structure which according to him

represented the sanctum sanctorum of Ram Janmabhumi:

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―Right in front of the Ram Chabootra and Bhandar, there

was a wall to the west in which there were several barred
windows and two doors. The doors used to remain locked.
There was a building of three shikhars to the west of the wall
with ironbars in which the place of the central shikhar portion
is Shri Ram Janam Bhoomi which is called Sanctum-
Sanctorum, according to Hindu tradition, faith and belief. On
the basis of this faith and belief, I also used to go for the
darshan and
Parikrama of the Shri Ram Janam Bhoomi.‖

The close-proximity of Ramchabutra with the grill-brick wall is a matter

which will assume importance. The witness noted that the wall was ―right

in front of Ramchabutra‖.

(ii) The witness spoke of the manner in which devotees would enter the

courtyard and proceed for darshan:

―All the pilgrims – darshanarthees would enter the Sri Ram

Janam Bhoomi premises from the entry gate to the east and
have darshans of the idols placed at Ram Chabootra, of the
idols placed under the neem and peepal tree located to its
south-east corner and Sita Rasoi and the foot prints etc.,
there and also have darshan of sacrosanct Sri Ram Janam
Bhoomi located inside the barred wall which is considered to
be the Sanctum-Sanctorum.‖

(iii) The witness deposed to the presence of the black stone pillars within the

three domed structure and of the carvings of deities on them. The space of

the sanctum sanctorum represented, according to the witness, the place of

birth of Lord Ram:

―In the Sanctum-Sanctorum located in Sri Ram Janam

Bhoomi, there were black pillars of touchstone on which
drawn the pictures of flower-leaves and Gods and
Goddesses. The temple with shikhars is the sacred
SanctumSanctorum whereas per the ancient belief, Lord Ram
was born…
The touchstone (black stone) pillars were fixed at the doors of
Garb Griha. The Hindu pilgrims also used to have the
darshans of the idols drawn on those pillars.‖

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(iv) During the course of his cross-examination, certain material statements

were elicited from the witness, some of which are:

(i) Between 1935 and 1949, when he went to the Ram Janmabhumi, he

had darshan of Lord Ram at all the religious places like

Ramchabutra, Sita Rasoi and the main sanctum sanctorum;

(ii) At the sanctum sanctorum, darshan was obtained from outside the

iron bars and prasad would be placed near the iron bars;

(iii) In front of the eastern gate, there was a wall with iron bars in which

there were two doors. Inside the door and below the dome was the

sanctum sanctorum. There was a photo of Lord Ram inside the

sanctum sanctorum. However, the witness had not himself seen any

aarti being performed inside the sanctum sanctorum; and

(iv) No Muslim would approach the premises out of fear of the sadhus

and bairagis.

Based on what he perceived to be contradictions in the identification by the

witness of certain photographs, Dr Rajeev Dhavan, in his written submissions

criticised the testimony of the witness. He has also adverted to the statement of

the witness that Ram Lalla had made his appearance under the middle dome in

1949. The witness also offered some explanation of the damage that was done to

the building in 1934. These contradictions cannot lead to the discrediting of the

witness or his entire testimony on the nature of worship by Hindu devotees at the

site. There is no reason to doubt the statement of the witness that he was a

regular visitor and a worshipper at the site. His testimony in the Examination-

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inChief on the nature and site of worship has not been shaken in the course of the

cross-examination. The discrepancies which have been noticed by Dr Rajeev

Dhavan are certainly not of a nature which would cast doubt on the substratum of

the deposition on the above aspects.

523. Ram Surat Tewari (OPW-7): The witness was seventy-three years old on

the date of his Examination-in-Chief which is 19 September 2002. His village was

situated 8 kilometres from Ayodhya. The witness stated that he visited Ayodhya

for the first time in 1942 during the summer when he resided with his brother who

was in service there. Thereafter, he visited Ayodhya four to five times each year.

The witness has specifically adverted to the pillars of black stone on either side of

Hanumat Dwar and to the carvings of stone:

―On both the sides of Hanumat Dwar, pillars were erected of

black touch stone on which flowers, petals and human
images were engraved. Human images looked like Dwarpal
and their faces appeared scratched. My brother had told that
the idols were of Jai and Vijay.‖

In the above extract, the witness adverts to images which resembled dwarpal

(gatekeeper) and of Jai and Vijay. Like the other witnesses, OPW-7 spoke of the

fact that devotees would have darshan at Ramchabutra and then proceed through

the lattice wall for obtaining darshan of the ‗Garbh Grih‘. The witness deposed

that above the Singh Dwar, there existed two statues of lions, and between them

of garuda. He also stated that a statue of varah (a boar) was installed on the

southern wall of the main entrance gate. The witness spoke of twelve pillars of

Kasauti stone inside and outside the main gate of the middle dome:

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―Twelve pillars of Kasauti (touch stone) were erected inside

and outside the main gate of middle dome of the three-domed
building inside the lattice wall and on those pillars a
ghatpallav, flowers and petals and the idols of Hindu Gods
and Goddesses were inscribed and among them the faces of
idols, hands and their legs were scratched.‖

524. Kaushal Kishore Mishra (OPW-12): The witness was seventy-five years of

age on 19 September 2002, the date of the Examination-in-Chief. A resident of

Ayodhya, the witness is an Acharya and belongs to a family of priests. Since the

age of fourteen or fifteen, the witness stated that he was performing worship at

Ram Janmabhumi. During the course of the Examination-in-Chief, the witness

stated that lakhs of people gathered there for worship on the occasion of festivals

when they would visit Ramchabutra, Sita Rasoi and the sanctum sanctorum

where Lord Ram was born below the middle dome of the three domed structure.

The devotees would also perform a parikrama. The witness also stated that no

Muslim of Ayodhya came near the premises of Ram Janmabhumi for the purpose

of prayer and there was no offering of namaz.

According to the witness, there were idols of Ram Lalla and Shaligram on the

Chabutra where offerings were made. Bairagis and sadhus also lived there, and

they belonged to Nirmohi Akhara. Prasad for the deities was prepared in the

store of Nirmohi Akhara and a priest was also appointed to look after the Ram

Mandir and Sita Rasoi. The witness spoke about the two doors at the outer

courtyard and the grill-brick wall separating the disputed building and the outer

courtyard. Both the doors of the wall with bars would be opened and the witness

stated that he would go through the gate to worship the idol of Lord Ram.

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Though, the witness stated during the course of his Examination-in-Chief that he

accompanied his father and grand-father to Ram Janmabhumi and saw the

pilgrims praying below the middle dome of the disputed structure in the sanctum

sanctorum, in the course of his cross-examination, he stated that in 1934, he did

not go inside the disputed building but only upto Ramchabutra. However, since

1934, he claimed to have been going inside the three domed building. He claimed

that there were two iron doors to enter the building; one of which on the North

was always kept open. According to him, in 1949 there was no idol inside the

building with domes but only a calendar was put up on the platform constructed

below the middle dome. According to the witness, he performed worship inside

the building when there was no rush but when there was a rush of people,

worship would be performed outside near the Ramchabutra. However, he took

devotees inside the disputed building for worship after 1949 and not before it.

Between 1949 and 1986, he took oral permission from the receiver to go inside

the building. During 1934-1949, some people made their offerings outside at

Ramchabutra; others gave it to a priest near the iron wall gate due to the rush of

the people while some people would go inside to make their offerings. The priest

sitting in the platform below the middle dome accepted the offerings. In response

to the question as to how aarti and bhog was offered between 1934 and 1949

when there was no idol, the witness stated:

―Question : - From 1934 to 1949 there was no idol below the

dome, to whom the Aarti, bhog etc. offered?
Answer : - The importance of the disputed building, the
pictures on the Calendars, mental worship and meditation
were such things for which worship, bhog, recitation, Aarti
were performed.‖

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The witness however accepted that there is no other public temple lacking an idol

in the sanctum sanctorum. According to him, the idol of Ram Lalla was placed

before the middle dome of the disputed building during the night of 22/23

December 1949. According to the witness, prior to 1949, the north side door to

the disputed structure was opened while the southern door remained closed, keys

being in the custody of police. Hence, between 1934 and 1949, he entered the

disputed structure below the dome only through the north door. Between 1934

and 1949, the police was deputed there as the crowd began to increase and the

southern door was kept locked. According to him, it was during 1934-49, that he

visited the disputed structure below the middle dome and made offerings to the

photo of an idol in a calendar.

525. Narad Saran (OPW-13): The witness was seventy-six years old on the

date of his Examination-in-Chief which was on 27 January 2003. He came to

Ayodhya in 1946 and after the death of his Guru, he succeeded him as the

Mahant to Saraju Kund in 1979. The witness has accepted that the idols were

shifted from Ramchabutra to the place below the central dome on the night

between 22/23 December 1949. He was confronted with photographs of the

inscription containing the word ―Allah‖. According to the witness, the inscriptions

were leaves and flowers only. He accepted that where Allah is written, the wall

cannot be a wall of the temple. The witness could not confirm as to whether

Muslims had offered namaz in the disputed building on the dates that he did not

visit it. The witness spoke about the belief of the sanctum sanctorum being below

the middle dome. The witness deposed that there were Kasauti pillars on either

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side of the gate at Hanumat Dwar with the idols of Jai and Vijay engraved

thereon.

The Sunni witnesses

526. The plaintiffs in Suit 5 have relied upon the account of Sunni witnesses

as strengthening their case. The following Sunni witnesses were relied upon:

Mohd Hashim (PW-1): The witness was seventy-five years old when his

statement was recorded in July 1996. He worked as a tailor by profession and

was a resident of Mohalla Kothia at Ayodhya. The witness stated that his

residence was three furlongs away from the disputed site and he went to offer

namaz in Babri Masjid for the first time in 1938. The witness stated that at that

time, Friday namaz used to be performed in the two mosques but Taravi namaz

(special prayer/namaz performed after Isha namaz during the pious month of

Ramzan) used to be performed only in Babri Masjid. The witness claims to have

read the last namaz at the disputed site on 22 December 1949 and was thereafter

prevented from accessing and offering prayers at the site by government officials.

The witness stated that pursuant to the order of attachment, he and many others

attempted to offer namaz but were prosecuted for committing a breach of Section

144 CrPC and they were sentenced to two months‘ imprisonment with a fine of Rs

50/-. During the course of his statement, the witness deposed that Ganj-E-

Shahidan was in the east of the disputed site. On the northern side there was a

road and beyond that was a Janmasthan temple with a signboard marking the

Janmasthan. On the southern side of the disputed site was a graveyard. There

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was a gate each on the northern and eastern sides of the disputed site and the

entry was mostly from the eastern gate. On entering from the eastern gate there

used to be a Chabutra whereupon sometimes the priest used to sit. Near the

northern gate of the mosque there was a ‗Chulha‘ called Sita Rasoi. According to

the witness, there was a wall in front of Sita Rasoi and when the crowd used to

increase, the northern gate used to be opened for passage. The northern and

eastern gates were surrounded by a boundary wall. There was another wall of the

mosque where there was a main door which was locked. This lock was put on the

date when the mosque was attached. The witness stated that no idols were

placed inside the disputed site upto 22 December 1949 and no worship was ever

performed inside the three domed structure.

The witness was cross-examined initially on 24 June 1996. During the course of

his cross-examination, the witness stated that the disputed site which was

attached on 22/23 December 1949 was called Ram Janmabhumi by Hindus and

Babri Masjid by the Muslims. He stated that the Janmasthan temple was the Ram

Janmabhumi temple and even in the Suit of 1885, the disputed site was referred

to as the Ram Janmabhumi. During the course of his cross-examination, the

witness further stated that as Ayodhya is considered to be the birth-place of Lord

Ram, it is as important for Hindus as Mecca is for the Muslims. He further stated

that pilgrims from outside India also visited the Janmasthan temple for darshan on

the occasion of festivals and temporary shops for selling offerings like flowers,

garlands and batasha were set up for the pilgrims. The witness stated that he had

seen the Hindus doing the Panchkoshi and Chaudhakoshi parikrama around the

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disputed property since his childhood and that the practice was being followed for

hundreds of years. The witness after seeing photograph nos 45, 46 and 54 and A

2/41 of the Kasauti pillars stated that the figurines or the carvings on the pillars

were of Hindu Gods and that the pillars that were visible at the eastern main gate

were similar to the ones used in the dome. The witness confirmed that the stone

pillars remained intact till the destruction of the disputed premises in 1992. In

response to a question whether a Muslim would go to offer namaz in a place

where there are pictures of Gods, Goddesses or flowers, the witness responded

that it was prohibited to offer namaz before a picture of a God.

527. Haji Mehboob Ahmed (PW-2): was fifty-eight years old when his

statement was recorded in September 1996. He was a resident of Tedhi Bazar,

Ayodhya and his house was situated about three furlongs away from the disputed

site. He stated that he had offered namaz in the disputed site hundreds of times

and besides the Friday namaz he used to offer namaz five times till 22 December

1949. The witness stated that he never saw any worship or puja being performed

by the Hindus inside the disputed site. The witness was cross-examined initially

on 17 September 1996. During the course of his cross-examination, the witness

referred to the grilled wall that joined the boundary wall of the three domed

structure and stated that the structure was considered to be a mosque by the

Muslims and a mandir by the Hindus. The witness stated that just as Ayodhya

was a place of pilgrimage for the Hindus, similarly, it was for the Muslims and they

referred to it as ‗Khurd Mecca‘. He stated that the parikrama used to take place

in the winters and those performing parikrama also used to visit the temple for

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darshan. The witness was unable to determine whether the pillars were made of

stone or Kasauti stone. The witness denied the existence of idols and other

symbols of the temple shown in photograph nos 29 and 30 and stated they were

not there at the time when he went to offer namaz at the disputed site.

528. Mohd Yaseen (PW-4): He was sixty-six years old when his statement

was recorded in November 1996. He was a resident of Mohalla Raiganj, Ayodhya

and was a shoemaker. The witness stated that the disputed structure was used

for offering namaz and he had been continuously reading Friday prayers at the

disputed site. He stated that there existed black stone pillars in the disputed

structure, but no images of Gods and Goddesses were engraved on them.

According to the witness, images of flowers and leaves in the shape of flowerpots

were carved on them. The witness was first cross-examined on 29 November

1996. During the course of his cross-examination, the witness stated that the

Hindus believed that the disputed structure was the birth-place of Lord Ram and

they considered it as a sacred place of worship. The witness further stated that it

was wrong to assume that demolishing a temple or an idol was not an offence

according to the Quran. The witness deposed that no Muslim was allowed to

demolish a temple built at a particular place and construct a mosque over it and if

any person could prove a mosque was built upon the destruction of temple, it

would not be a valid mosque.

529. Hasmat-ulla-Ansari (PW-7): He was sixty-five years old when his

statement was recorded in December 1996. He was a resident of Mohalla

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Kaziana, Ayodhya and was a typist. The witness stated that the disputed

structure was a mosque and that he had first offered namaz there in 1943 and

thereafter till 1949. He also claimed that the disputed structure was never a

temple and no Hindu offered worship there till 22 December 1949. The witness

was first cross-examined on 5 December 1996. During the course of his

crossexamination, he stated thus:

―A Fair in Shravan is held here. Fair at the Mani Parbat and

another fair at Vashishtha Kund is also organised. There is
Ram Navami Fair in the month of Chaitra. It is said that Ram
Navami Fair is organised on the occasion of birthday of Lord
Rama. On this occasion, people from outside also come to
Ayodhya. During the days of our childhood thousands of
people from outside used to come. These days lakhs of
people come. Parikramas are also organised there. Of the
two parikramas one is Panchkosi and another is
Chaudahkosi. Hindus come from different places and they
perform Parikramas also on this occasion.‖

530. Mohd Qasim Ansari (PW-23): He was seventy-four years old when he

filed an affidavit in January 2002. He was a resident of Mohalla Kutia, Ayodhya

and was a motor mechanic by profession. The witness stated that his residence

was situated about three furlongs away from the disputed site. The witness stated

that he had recited Fazir Zohar, Asir, Magrib, Isha, Tarvi and even Zumma namaz

multiple times at the disputed site. According to the witness, he recited the last

namaz on 22 December 1949 and till the time he recited namaz, there was no idol

kept inside the three domed structure and no Hindus ever prayed at the disputed

site. The witness was first cross-examined on 16 January 2002. During the course

of cross-examination, the witness stated that the Hindus considered Lord Ram as

their God and believed that Lord Ram was born in Ayodhya. The witness stated

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that Babri Masjid was referred to as the Janmabhumi by the Hindus and that he

was aware of Panchkoshi Marg and Panchkoshi Parikrama.

He stated that the disputed site was at a distance of 300 metres from Panchkosi

Marg and all the famous temples of Ayodhya including the disputed site were

situated within the Panchkosi Marg. According to the witness, during the month of

Kartik, a grand festival was organised in Ayodhya, shops were set up and lakhs of

pilgrims came to have darshan at the Ram Janmabhumi, Kanak Bhawan and

Hanuman Garhi. The witness also stated that the Chaudahkosi Parikrama was

also performed once a year during the month of Kartik and lakhs of pilgrims used

to take part in it. The witness also referred to the Ram Navami festival held in the

month of Chaitra and the Sawan festival which attracted lakhs of people to the

city of Ayodhya. The pilgrims used to take a dip in the river Saryu and have

darshan at Kanak Bhavan, Janmasthan mandir and even the Janmabhumi.

According to the witness, during the days of the festival, Hindus and Muslims

coexisted in love and peace.

531. Analysing the depositions of the above witnesses, the following facets

can be gleaned:

(i) Hindus consider Ayodhya as the birth-place of Lord Ram. Hindu Shastras

and religious scriptures refer to it being a place of religious significance;

(ii) The faith and belief of the Hindus is that Lord Ram was born inside the

inner sanctum or ‗Garbh Grih‘ right below the central dome of the three

domed structure;

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(iii) What Muslims call the Babri mosque, the Hindus consider as the Ram

Janmabhumi or the birth-place of Lord Ram;

(iv) The faith and belief of the Hindus that Lord Ram was born in Ayodhya is

undisputed. Muslim witnesses also stated that Hindus have faith and belief

in the existence of the Janmasthan;

(v) Both Hindu and Sunni witness testimonies indicate that the disputed site

was being used for offering worship by devotees of both faiths;

(vi) Both Hindu and Sunni witnesses have described the physical layout of the

disputed structure in the following manner:

(a) There were two entrances to the disputed premises – one from the

East through the Hanumat Dwar and the other from the North

through Singh Dwar. There were on both sides of Hanumat Dwar

black touch stone (Kasauti stone) pillars with engravings of flowers,

leaves and Hindu Gods and Goddesses. Hindus used to pray and

offer worship to the engravings on the pillars. Two Hindu witnesses

spoke about the ‗Jai and Vijai‘ engravings;

(b) Outside the main gate was a fixed stone with the words ‗Janam

Bhumi Nitya Yatra‘ written on it. On entering through this gate, the

Ramchabutra was on the left upon which the idols of Lord Ram had

been placed. Kirtan was carried out near the Ramchabutra by

devotees and saints;

(c) In one corner of the outer courtyard idols of Ganesha, Nandi,

Shivlinga, Parvati and others were placed below a fig and a neem

tree;

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(d) There existed a structure with a thatched roof, which had provisions

for storing food and preparing meals;

(e) Outside the disputed premises, in the south-eastern corner, Sita

Koop was located at a distance of 200-250 paces;

(f) The Northern entrance gate to the disputed site was Singh Dwar

above which a pictorial representation of garuda was engraved in the

centre with two lions on either side. On entering through Singh Dwar,

Sita Rasoi was accessed, which included a Chauka-BelanChoolha,

Charan Chinha and other signs of religious significance; and

(g) To the West of Ramchabutra, there was a wall with iron bars. Inside

the railing was the three domed structure which Hindus believed to

be the birth-place of Lord Ram. The Hindus believed this as the

‗Garbh Grih‘ which was considered a holy and revered place. There

existed black Kasauti stone pillars in the three domed structure. The

witnesses stated that the pillars had engravings of flowers, leaves,

Gods and Goddesses on them;

(vii) A pattern of worship and prayer emerges from the testimonies of the

witnesses. Upon entering Hanumat Dwar, the Hindus used to offer prayers

and worship the idols of Lord Ram placed upon the Chabutra in the outer

courtyard followed by the idols placed below the fig and neem tree. Prayers

were offered at the Sita Rasoi and then pilgrims used to pay obeisance to

the ‗Garbh Grih‘ located inside the three domed structure, while making

their offerings standing at the iron railing that divided the inner and outer

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courtyard. The Hindus performed a parikrama or performed

circumambulation of the Ram Janmabhumi;

(viii) Both Hindu and Muslim witnesses stated that on religious occasions and

festivals such as Ram Navami, Sawan Jhoola, Kartik Poornima, Parikrama

Mela and Ram Vivah, many Hindu pilgrims from across the country visited

the disputed premises for darshan. Worshippers used to take a dip in the

Saryu river and have darshan at Ram Janmabhumi, Kanak Bhawan and

Hanumangarhi. Pilgrims would perform a customary circumambulation

around the disputed premises; and

(ix) Both Hindu and Muslim witnesses have referred to Panchkoshi and

Chaudahkosi Parikramas that were performed once a year during the

month of Kartik, which attracted lakhs of pilgrims to the city of Ayodhya.

The areas of dispute

532. From the testimony of the Hindu and Sunni Muslims witnesses, there appear

three significant areas of dispute:

(i) The first is about the presence of idols under the central dome of the three

domed structure, which was a part of the Babri mosque to the Muslims and

the ‗Garbh Grih‘ to the Hindus. The oral accounts contain isolated

references to the presence of a calendar bearing a photograph of the idol

and of worship being offered to this pictorial representation. The Hindu

witnesses have however accepted that the idol of Lord Ram was shifted

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into the inner courtyard, below the central dome on the night between 2223

December 1949. The possibility of any idol under the central dome prior

to 22-23 December 1949 stands excluded on a preponderance of

probabilities;

(ii) Second, there are variations in regard to the statements of the Hindu

witnesses on whether and, if so the nature of the prayers, that were offered

inside the inner sanctum prior to 22-23 December 1949. While some

witnesses have stated that they had entered the disputed structure for

offering prayers below the central dome, other witnesses have stated that

prayers were being offered only at the railing separating the inner and the

outer courtyards. The case that prayers were offered at the railing is

inconsistent with the claim that prayers were being offered inside the three

domed structure by the Hindus between 1934 and 1949. According to the

Muslim witnesses, no prayers were being offered inside the three domed

structure by the Hindus; and

(iii) Third, there is a variation between the statements of the Hindu and Muslim

witnesses on whether namaz was offered inside the three domed structure

of the mosque between 1934 and 1949. The Muslim witnesses

consistently deposed that namaz was being offered and that the last Friday

prayers were offered on 22 December 1949. On the other hand, according

to the Hindu witnesses, no Muslim offered prayers at the three domed

structure and if anyone ventured near the premises, they were made to

leave out of the fear of the sadhus and Bairagis in the neighbourhood.

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N.11 Photographs of the disputed structure

The report of the Commissioner dated 3 August 1950

533. The judgment of Justice Sudhir Agarwal records that there are three

sets of albums containing photographs taken by the State Archaeological

Department pursuant to an order dated 10 January 1990. Dr Rakesh Tewari

(OPW-14) who was the Director of the State Archaeological Department verified

the photographs. Among them, one album of coloured photographs containing

204 photographs was marked as paper No. 200 C1/1-204. The second album of

black and white photographs contains 111 photographs and was marked as paper

No. 201 C(1)/1-111. The albums contained photographs of the Kasauti stone

pillars and other features of the disputed structure.

Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the Sunni

Central Waqf Board, has placed reliance on the report dated 3 August 1950

submitted by Mr Basheer Ahmad Khan, pleader commissioner in Suit 1. The

report contains thirteen photographs. Paragraphs 1 and 8 to 10 of the report

contain an explanation about photographs 1, 8, 9 and 10. Photograph 1 depicts

the word ‗Allah‘ inscribed in Arabic above the arch of the main gate outside the

disputed structure. The Commissioner‘s report states:

―1. Photo No.1 is the Photograph of the disputed building

from outside, of the main entrance. A little above the arch of
the main gate towards the right and left there are small
circles in which the word "Allah" is written (inscribed) in
Arabic. A little above it there now hangs a picture of
Hanumanji. (Beneath the frame of the picture 'Allaho Akbar' is

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inscribed in the wall in the Arabic character). This inscription

has been covered by the said picture and therefore it is not
visible in the Photograph, and as the photo of this portion
could not be taken without the removal of the Picture of
Hanumanji, I am making it clear in my report. I did not insist
on the removal of the Picture with a view to avoid any trouble
or ugly situation that might have arisen.‖
(Emphasis supplied)

534. Photo 8 contains three inscriptions of ―Allah‖ in Arabic characters. It is

taken from the courtyard of the building of the middle arch in the eastern wall.

The Commissioner‘s report states:

―8. No.8 is Photo taken from the Courtyard of the building in

suit of the Middle Arch in the eastern wall. A little below the
top of the arch at three places ―Allah‖ in Arabic
character is inscribed. Below the ‗Allah‘ in the middle, the
inscription
‗Toghra‘ (...) is blurred in the photo (but at the spot it can be
read).‖
(Emphasis supplied)

Photograph 9 was of the inner central Mihrab in the western wall. Of this, the

Commissioner states:

―9. No. 9, is a Photo of inner Central Mehrab (Arch) in the

western wall of the building in suit. On the top of the arch
Caligraphic Allah in Arabic character is inscribed in the
wall and below it "Bimillah-hirrahman-irrahim" and still
below it "Iailaha-illahah Moammadur Rasulullah" is
inscribed.‖
(Emphasis supplied)

Photograph 10 was of the mimber or pulpit in respect of which the

Commissioner‘s report states:

―10. No.10 in the Photo if the pulpit (Mimber) on which the

idols are placed. On the left side of the mimber there is a
Persian inscription which is blurred in the Photo.‖
(Emphasis supplied)

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Finally, in respect of the photograph nos 11 and 12, Commissioner‘s report

contains the following observations:

―11. No.11 is the Photo of the inner Northern Arch in the

West wall towards the North of No.10. The calligraphic
Allah in the Arabic character is inscribed in the wall.
12. No. 12 is Photo of the Southern Arch in the Western
wall from inside the building with similar Arabic
inscription of Allah as in No.11.‖
(Emphasis supplied)

Photo 13 contained a depiction of the Vazoo or place of ablution. In the

photographs which have been annexed to the report of the Commissioner dated 3

August 1950, the inscription of Allah appears, as stated above, in several places.

Among them, in photograph 10, the inscription is not visible upon the idols being

placed at the pulpit. The Commissioner has also noted that there is a

Persian inscription which is blurred in the photographs. Similarly, the

Commissioner also noted that the inscription in photograph 1 was not visible

since it had been covered by the photograph of a Hindu idol. The Commissioner

found that the inscription in photograph 8 was blurred but could be read at the

spot. Be that as it may, during the course of the hearing, we have noticed with the

assistance of the learned Counsel the inscription of ‗Allah‘ in photograph 9 and in

photographs 11 and 12.

535. Turning to the albums of coloured and black and white photographs,

there is in photograph 40 of the coloured album, an emblem of two lions flanking

the garuda on either side above the entry door. The album of coloured

photographs contains, among other things, depictions of the black Kasauti stone

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pillars. Justice Sudhir Agarwal has recorded a reference to them as well as to the

album of black and white photographs in the following extract:

―3435. There are three sets of albums which contain

photographs taken by the State Archaeological Department
pursuant to order dated 10.01.1990 passed by this Court. Dr.
Rakesh Tiwari, OPW-14 was Director of State Archaeological
Department who deposed statement as OPW 14 and verified
all these photographs. One album which the learned counsel
for the parties have termed as "Album of Coloured
Photographs" contain 204 photographs and has been marked
as Paper No.200 C1/1-204. The second one contains 111
photographs which are black & white and the parties counsels
have commonly call it "The Album of Black & White
Photographs" and it is Paper No.201 C1/1-111. The relevant
photographs of these pillars in the coloured album are Paper
No.200 C1/48, 200 C1/50, 200 C1/51, 200 C1/52, 200 C1/54,
200 C1/87, 200 C1/104, 200 C1/105, 200 C1/109, 200
C1/114, 200 C1/115, 200 C1/141, 200 C1/146, 200 C1/147,
200 C1/166, 200 C1/167, 200 C1/181, 200 C1/186, 200
C1/187, 200 C1/195, 200 C1/199 and 200 C1/200. Similarly,
in the album of Black & White, photographs, the relevant one
of concerning pillars are 201 C1/55, 201 C1/57, 201 C1/76,
201 C1/88, 201 C1/91, 201 C1/103, 201 C1/104 and 201
C1/106. All these photos are being appended collectively as
Appendix 5 (A) to 5 (DD) to this judgment.‖

536. During the course of the hearing, this Court has perused the

photographs in the albums which tally with the above observations of learned

Judge. The black Kasauti stone pillars have carved engravings, many of which

have been smeared with vermillion colour. Some of the images on the black

Kasauti stone pillars have been desecrated. Among the witnesses who deposed

in connection with the photographs was Dr T P Verma (OPW 3/5) who became

the next friend of the first and second plaintiffs in Suit 5 after the death of Shri

Deoki Nandan Agarwal. Dr T P Verma deposed that the places where vermillion

has been applied may be images of idols, but he was not able to specifically state

whether it was a picture of Yaksha –Yakshini or Jai-Vijay. Since the testimony of

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Dr T P Verma has been emphasized by Dr Dhavan during the course of his

arguments, we extract the relevant part:

―Idols may be present at the places where vermillion or red

colour has been used in photographs No. 104, 105, 109, 110,
114 and 115 but it is not clearly visible in the photographs as
to which god-goddess or Yaksha-Yakshini or Jay-Vijay are
represented therein. The picture of Yaksha-Yakshini or
JayVijay is not visible at the place where colour has been
used in the pillars appearing in the rest of the photographs
out of the aforesaid photographs. (page 130-131), I am not
able to recognize any god-goddess, Yaksha-Yakshini or Jay-
Vijay in the black-white photographs of these pillars. There is
a hazy figure above the ‗Ghat alash‘ in photograph No. 55,
which can be of some god-goddess or Yaksha-Yakshini.‖

Proceeding ahead, Dr Verma stated:

―There are few idols in the coloured portion of Photograph

Nos. 141, 146 and 147, which may be of Gods-Goddess but I
cannot recognise them. No idol is visible to me in the
remaining photographs. In all these photographs where red
colour is not present, I am not able to see the pictures of any
God-Goddess, Yaksha- Yakshini or Jai-Vijai.

I am not able to recognize the idol of any God-Goddess,

Yaksha- Yakshini or Jai-Vijai over the pillars appearing in
these photographs.‖

On the other hand, other witnesses have specifically spoken of the presence of

Hindu idols in the photographs. Among them are Raghunath Prasad Pandey (DW

3/5), Mahant Dharam Das (DW 13/1-1), Ramesh Chandra Tripathi (DW 17/1) and

Shashi Kant Rungta (DW 20/1). The High Court noted certain contradictions in the

statements of the witnesses particularly in regard to the clarity of the photographs

and the identity of the images. Justice Sudhir Agarwal observed that these

variations were normal since the witnesses were not experts in the field of

iconography. Justice Sudhir Agarwal also noted the testimony of Dr TP Verma

which noticed the images of Gods and Goddesses in the coloured portions of
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photographs 188, 193-195, 189 and 200. However, he also stated that he was not

able to precisely recognise which Gods or Goddesses have been represented

having regard to the hazy nature of the images. After a review of the evidence,

Justice Sudhir Agarwal came to the following conclusion:

―3443. In view of the above, we have no hesitation in

observing that the pillars fixed inside and outside the building
in dispute contain some human images and at some places
there appears to be some images of Hindu Gods and
Goddesses.‖

The photographs on the record contain inscriptions of Islamic origin and of images

traceable to Hindu forms of worship. Both co-existed in the disputed structure.

537. Justice Sharma while holding that the pillars contained images of Hindu

Gods and Goddesses inside the mosque held that the disputed structure lacked

the character of a mosque under the tenets of Islam. Justice S U Khan has

agreed with the view of Justice Agarwal to the contrary.

Issue No. 19(f) in Suit 4 was:

―Whether the pillars inside and outside the building in

question contain images of Hindu Gods and Goddesses? If
the finding is in the affirmative, whether on that account the
building in question cannot have the character of Mosque
under the tenets of Islam?‖

Justice Sudhir Agarwal came to the conclusion that despite the existence of

certain images of Hindu Gods and Goddesses on some of the pillars inside and

outside the building in question, the character of the structure of a mosque

remains unaffected. His view was that though human or animal images at a place

where namaz is to be offered are not permitted under Islamic tenets, despite the

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existence of the pillars containing those images, Muslims treated the building in

dispute to be a mosque and offered namaz for at least eighty years until the order

of attachment was issued on 29 December 1949. In his view, where persons who

believe in a particular form of worship treated the building as a place of Islamic

worship, it was not open to a third party to contend particularly after a long time of

lapse that the building was not a mosque constructed in accordance with the

tenets of that religion. This aspect of the case has already been explored while

dealing with the submission which was urged by Mr P N Misra on the tenets of

Islam. It is sufficient to note that the evidence on the record consisting of the

report of the Commissioner dated 3 August 1950 as well as the coloured and

black and white albums of photographs indicate firstly, the inscriptions of Allah on

the disputed structure, secondly, the presence of black Kasauti stone pillars

containing some images of Hindu Gods and Goddesses and thirdly, a depiction of

a garuda flanked by lions which would appear to be of a non-Islamic origin.

Inscriptions of an Islamic religious origin and engravings of a Hindu religious

character have co-existed on the disputed structure. They signify that in the

diversity of plural cultures in the sub-continent, there is underlying it all a universal

truth founded in the essential one-ness of mankind.

538. Dr Dhavan argued that there was no image of Hindu Gods or

Goddesses on the Kasauti pillars. He urged that the floral designs which were

found on them exist in Islamic architecture. The submission is that decorative

engravings and inscriptions do not detract from the character of a mosque and

therefore a theological question was argued by the Hindus to the effect that the

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carvings were per se un-Islamic. Dr Dhavan is not right in asserting that there is

an absence of any depiction of Hindu Gods and Goddesses on the Kasauti stone

pillars. The evidence indicates a position to the contrary. Dr Dhavan placed

reliance on two specific photographs, photograph nos 128 and 129 of the albums

containing coloured photographs. These photographs have been placed below

the inner dome. Dr Dhavan submitted that one of the photographs is of Guru Dutt

Singh who was a City Magistrate while another photograph, is of K K Nayyar who

was the District Magistrate at the relevant time when the incident took place in

December 1949. According to Dr Dhavan, these are photographs placed within

the structure in 1990 in breach of the order of status quo that was passed. Dr

Dhavan has drawn the attention of this Court to the evidence of Mahant Bhaskar

Das (DW 13/1) to whom photograph nos 128 and 129 were shown during the

course of his cross-examination. Extracts from the deposition of the witness,

tracing the career of K K Nayyar have been relied upon. On the basis of these

photographs, it was submitted that K K Nayyar and Guru Dutt Singh adopted a

partisan attitude when the mosque was desecrated in December 1949.

We have adverted to the submission of Dr Dhavan for the completeness of the

record and insofar as it has a bearing on the reason which may have led to the

installation of the photographs of two public officials of the State government in

the southern dome of the disputed structure.

N.12 Vishnu Hari Inscriptions

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539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3

February 2002 before the High Court of Dr K V Ramesh, pertaining to the

―Ayodhya Vishnu Hari temple inscription‖. The documents were taken on record

―subject to objection and proof‖ as required by the provisions of the Evidence

Act

1872. During the course of the trial, the plaintiffs of Suit 5 claimed that the above

inscription was recovered on 6/7 December 1992 from the debris of the disputed

structure which was demolished. The inscription is in stone with a dimension of

115cm X 55cm. Under the orders of the Court, an e-stampage (paper no. 203

C1/1) was prepared and was deciphered by Dr K V Ramesh (OPW-10) who is an

epigraphist. The translation of the text was marked as Exhibit 2 in Suit 5. The

case of the plaintiffs is that there was a Vishnu Hari temple at the site in dispute

and it was on the demolition of the temple that a mosque was constructed in its

place. In this segment, the inscription forms the fulcrum of the submission.

540. Material portions of the translation have been adverted to during the course

of the proceedings and are extracted below:

―Lines 13-14, verse 19- His nephew (literally brother's son),

the widely celebrated Meghasuta, the illustrious one, who
superseded Anayacandra; he earned the lordship of
Saketamandala through the grace of his elder, the Lord of the
earth, Govindacandra.
Line 14, verse 20- Not only did he, who was powerful, put an
end to the arrogant warriors who were dancing in
unrestrained frenzy in the battles constantly fought by him,
but he also gave (to his people) an excellent army which was
replete with (soldiers comparable to) the wish-fulfilling trees.
Lines 14-15, verse 21- By him, who was meditating in his
mind on the easiest means of quickly jumping across the
ocean of worldly attachments, was erected this beautiful
temple of (The god) Visnu-Hari, [on a scale] never before

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done by the preceding kings, compactly formed [i.e. built] with

rows of large and lofty stones which had been sculpted out.
Lines 15-16, verse 22- The position of Alhana, whose tireless
shoulders were like safety latches for the stability of the king
Govindacandra's empire, was subsequently occupied by his
younger (son?) Ayusyacandra.
Line 16, verse 23- Great poets dared not compare him with
Sahasanka and Sudraka; out of sheer fear none save the
God of Love dared draw the bow-string in his presence.
Line 17, verse 24- By him, who was of good conduct, and
abhorred strife, while residing at Ayodhya, which had towering
abodes, intellectuals and temples, Saketa-Mandala was
endowed with thousands of wells, reservoirs, almshouses,
tanks.‖

Dr Ramesh submitted a report about the inscription. The report states thus:
―The subjoined stone inscription is engraved on a
rectangular stone slab, the written area roughly covering an
area of 115 cms X 55 cms. The slab as at present extant is
diagonally broken in two leading to the loss of a couple of
letters in almost every line. Besides, the first and last two
lines have suffered heavy damage resulting in the loss of
many letters. All in all, the loss of letters have proved a
handicap to epigraphists and Sanskritists in the matter of fully
interpreting the contents of the text. Nevertheless, the overall
purport and the crux of its import are clear beyond doubt. In
the first instance a hurriedly prepared estampage, and in
recent times, a high quality estampage as well as some
photographs were all provided by Dr. S.P. Gupta Chairman,
Archaeological Society of India, New Delhi for which I am
highly thankful to him.

The text of the inscription is written in fairly chaste Sanskrit,

the orthographical features being regular for the period to
which the inscription belongs, namely the middle of the 12th
Century A.D. The inscription is not in any way dated, but may
be assigned, with confidence, to the middle of the 12th
Century on palaeographical grounds as well as the internal
evidence provided by the inscriptional text in question.

But for the opening salutation to Siva at the very beginning,

the entire text of the inscription is composed in Sanskrit verse
of fairly high literary excellence. As has been stated above,
the palaeographical and orthographical features are normal
for the period to which the inscription belongs, viz, the middle
of the 12th century A.D. This was an important period of
transition from classical Sanskrit to the North Indian
vernaculars. This can be easily identified in contemporaneous
inscriptions, including the present one, in the confusion in the

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use of class nasals and anusvara, and in the employment of

the sibilants and palatals.

As for the contents of the text, it is fully reflective of medieval

vanity as far as the eulogies of the heroes mentioned in the
inscription are concerned. The most important internal
historical information we get from this epigraph is the mention
of Govindachandra, obviously of the Gahadavala dynasty,
who ruled over a fairly vast empire from 1114 to 1155 A.D.
Verse 1 is entirely lost. Verse 2, which is badly mutilated,
refers to Trivikrama and, hence, may have been composed in
praise of Lord Visnu. Verse 3, which is also badly damaged,
seems to allude to the near-total decimation of the warrior
clans by Bhargava-Parasurama. Verse 4 refers to the
emergence of a Ksatriya family, heroes born in which
successfully resurrected the decadent warrior clans.
According to Verse 5, in that noble family was born the
beloved of the people, Mame. Verse 7 speaks of his
detachment from mundane things while Verse 8 informs us
that he bequeathed his realm and wealth to his son
Sallaksana. Verse 9 to 14 contain conventional praises
showered on this Sallaksana in which the poet has displayed
a high level of poetic imagination. Verse 15 refers to the birth
of his son whose stunning resemblance to his father was the
talk among the people. Verse 16 refers to this son as Alhana
and credits him with retrieving the past power and glory of his
family. While the next two verses (17 and 18) contain his
conventional praise, verse 19 gives the information that his
nephew, Meghasuta by name, as superseding a certain
Anayacandra and obtaining the Lordship of Saketa-mandala
through the grace of the senior Lord of the earth,
Govindacandra, While verse 20 lauds the military might of this
hero, verse 21 gives the important information that, in order to
ensure his easy passage into the heavens, Meghasuta built a
lofty stone temple for the god Visnu-Hari. From verse 22 we
learn that he, who was responsible for the stability of
Govindacandra's empire, was succeeded by the younger
Ayusyacandra as the Lord of Saketa-mandala. Verse 23
contains his conventional praise. According to verse 24, he
set up residence in the city of Ayodhya, which was adorned
with lofty abodes, intellectuals and temples, and added to the
entire Saketa-mandala thousands of small and big water
reservoirs. Verse 25 and 26 contain more conventional
praises of Ayusyacandra. Verse 27, which is partly damaged,
alludes to the well-known episodes of Vishnu's incarnations
as Narasimha, Krsna, Vamana and Rama. The badly
damaged verse 28 refers to a King (probably Ayusyacandra)
as warding off the danger of invasion from the west (i.e. from
the invading Muslim forces). Verse 29, which is incomplete,
mentions the king Ayusyacandra.

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The reference to Saketa-mandala is interesting. It is well

known that North India just as in the case of the South, was
divided into administrate divisions called mandalas (see the
word mandala in the indices to H.C. Ray's monumental
twovolume work 'The Dynastic History of Northern India', II
edn.'
1973, Delhi).‖

541. While discussing the evidence of the witness, Justice Sudhir Agarwal

has noted that the expertise of OPW-10 as an epigraphist could not be disputed

by any of the parties. OPW-10 appeared as a witness and proved the translation

of the contents of the stone inscription by him. According to the witness, the

inscription would belong to the twelfth century A.D. and from it, the existence of a

Vishnu Hari temple constructed in Ayodhya in twelfth century A.D. has been

noted. OPW-10 stated that the expression indicates that Ayodhya was the

headquarters of Saket Mandala. Moreover, while the temple was constructed by

Meghasuta, the inscription was written by his successors. Justice Sudhir Agarwal

in the course of his decision has observed that the genuineness and authenticity

of the inscription could not be doubted though it was argued on behalf of the

Muslim parties that the manner in which it was claimed to have been retrieved

was not trustworthy so as to enter a finding that it had been affixed in the building

at the disputed site prior to its demolition. Hence, it was urged by them that the

stone inscription by itself cannot be evidence to hold that a Vishnu Hari temple

existed or was constructed at the disputed site.

542. Dr K V Ramesh (OPW-10) stated in the affidavit in lieu of his

Examinationin-Chief that he has an M.A. in Sanskrit Language and Literature

from Madras University and completed a Ph.D. in History in 1965 from Karnataka

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University. In 1965, he joined the ASI in the office of the Government Epigraphist

and was selected by UPSC as Deputy Superintending Epigraphist for Sanskrit

inscriptions in 1966. He was promoted and eventually rose to become the Joint

Director of the ASI in 1992 before his retirement on 30 June 1993. Dr Ramesh

stated that he was approached by D N Agarwal and his counsel for deciphering

the twenty-line stone inscription on the basis of an e-stampage made available to

him, which was paper no. 203C-1/1 on the record of Suit 5. He accordingly made

a translation of the e-stampage and handed over the report to D N Agarwal.

During the course of his cross-examination, Dr Ramesh stated that he had seen

an additional legible photograph of the inscription in December 1992 when it was

brought to him by Dr S P Gupta at Delhi. He also stated that he had partly

deciphered the inscription on his own in his office at the ASI at Delhi. He stated

that he had once assembled with several other persons at the office of the Indian

Archaeological Society which was headed by Dr S P Gupta. The witness stated

that he was conversant with the inscriptions of Gahadawala Nagri script and that

he had seen nearly ten to twenty inscriptions of the dynasty published in

Ephigraphia Indica. The witness had written over fifty articles on Sanskrit

inscriptions found in northern and southern India. Of them, ten inscriptions

belonged to northern India all of which relate to the period prior or up to the end of

the twelfth century A.D. During his cross-examination, the witness explained the

basis on which it had been deduced that the inscription dated to the twelfth

century:

―According to me, the period of the inscription in question

can be dated back to the 12th Century, and wherever I have used specifically
the period around middle of 12th Century, I meant that it was from about 1130

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to 1170 A.D. If once I have used the period around middle of the 12 th Century,
it will remain the same even if I subsequently refer it to as 12 th Century. It is
on account of the palaeographical grounds and the internal evidence as
recited by me in para 2 at page 1 of my report (Ext. OOS 5-2) that I arrived at
the approximate period of the inscriptional text in question.‖
543. The expertise of Dr K V Ramesh, based on his qualifications and

experience in the ASI, is a matter of record. Dr Rajeev Dhavan, learned Senior

Counsel appearing on behalf of the Sunni Waqf Board, however sought to

emphasise the following aspects in regard to the testimony of Dr Ramesh:

(i) In the translation at verse 27, incarnations of Lord Vishnu are mentioned in

the avatars – Narsimha, Krishna, Vamana and Ram. Hence, according to

the submission, no specific importance or focus on Lord Ram has been

made in the inscription;

(ii) Dr Ramesh is not a historian of Northern India and according to him it is not

possible to interpret inscriptions until the epigraphist knows contemporary

history;

(iii) Dr Ramesh had occasion to sit with Dr S P Gupta in the office of the Indian

Archaeological Society (which is distinct from the ASI which is a

governmental body);

(iv) Dr S P Gupta who is OPW-3 had admitted to being a member of the RSS

before 1975 and hence, bias cannot be ruled out;

(v) Dr Ramesh clarified that at page 9 of his report in verse 5 – line 4 and 5,

while making a reference to the noble family, he has translated Ram

Janmabhumi as the birth-place of valour – meaning thereby the birth-place

of the Royal Kshatriya family of the dynasty. He clarifies that the members

of this family later became chieftains of Saketa Mandala during the time of

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Meghasuta. This, in the submission, shows that the reference to Ram

Janmabhumi was not to the birth-place of Lord Ram but to the birth-place

of the royal dynasty at the time; and

(vi) Verse 27 in para 13 of the report is in praise of Lord Vishnu and there is no

specific mention of Lord Ram.

544. In assessing this submission, we must at the outset note that no cogent

basis has been furnished to doubt the qualifications and experience of Dr K

V Ramesh. Dr Ramesh was employed with the ASI for many years and

eventually rose to occupy the position of Joint Director General. He has

furnished a translation of the original inscription and has indicated the basis

on which he deduced that it relates to the twelfth century. He notes that the

epigraphists mention Govindachandra who belonged to the Gahadavala

dynasty and ruled between 1114 and 1155 A.D. Moreover, the chaste

Sanskrit, orthographical features and palaeography confirmed (according

to Dr Ramesh) that the inscription belongs to the twelfth century A.D. Dr

Ramesh also spoke about verses 21 to 24 mentioning the construction of a

lofty stone temple by Meghasuta dedicated to Lord Vishnu Hari. He was

succeeded by Ayusyacandra who, while ruling Ayodhya endowed Saketa

Mandala with the construction of reservoirs. Verse 27 which has been

damaged in part has been interpreted by Dr Ramesh in the course of his

Examination-in-Chief as follows :

―13. ―Verse 27 (damaged in part) alludes to the episodes of

Vishnu‘s incarnation as Narasimha (who killed Hirnyakasipu),
Krishna (who killed Banasura), Vamana (who destroyed Bali)
and Rama (who killed ten-headed Ravana).‖

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Hence, he deduced that the Vishnu temple constructed by Meghasuta must have

been in existence in the temple town of Ayodhya from twelfth century A.D. We

must note at this stage that the authenticity of the inscription has not been

challenged. The language on the stone slab is Sanskrit of the twelfth century A.D.

The challenge pertains to the place and manner in which the inscription was

alleged to have been recovered, which shall now be considered.

545. As regards the recovery of the stone inscription, the plaintiffs in Suit 5 relied

on the evidence of Ashok Chandra Chatterjee (OPW-8). The witness who is

a resident of Faizabad stated that he was a partner in a firm by the name of

Majestic Automobiles as well as the owner of Majestic Talkies. He claimed

to be a reporter with a weekly journal titled ―Panchjanya‖ of Faizabad

region for over fifteen years. On the recovery of the stone inscription, OPW-

8 stated that on 6 December 1992 when the disputed structure was

demolished, he was present at the site for the collection of news, on the

western side of the three domed structure. When the work of levelling was

being undertaken by the Government of Uttar Pradesh on the eastern side

of the Ram Janmabhumi premises, he states that some stones were found

which appeared to be the ruins of the temple. On getting this information,

he proceeded to the site and all the idols including the ruins of the temple

recovered during the process of levelling were placed in the custody of the

Ram Katha Museum, Raj Sadan Ayodhya of the Archaeology Department

of Uttar Pradesh.

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546. OPW-8 stated that on 6 December 1992 while he was standing behind the

disputed structure, he saw a plaster of a part of the western wall being

broken and stones and bricks of uneven shape and size fitted in the wall.

During the course of the demolition of the structure a slab (three and half

feet long, two feet wide and six inches thick) fell down. He states that many

of the slabs which had fallen appeared to be the ruins of some temple and

that a saint at the site informed him that the slab appeared to be an

inscription of an old temple. The inscription was picked up by the Kar

Sewaks who brought it near the building located at Ram Katha Kunj. The

witness stated that subsequently the police took custody of the slabs. The

witness stated that on 6 December 1992, the date of destruction of the

mosque, he got acquainted with Dr Sudha Mallayya. On 13 December

1992, Dr Sudha Mallaya contacted him for his help in inspecting the slabs

which had been recovered during the course of the demolition. Dr S P

Gupta and Dr Sudha Mallayya accordingly came to the building located at Ram

Katha Kunj. The witness stated that on 15 December 1992, a photograph of the

inscription was published in the Lucknow edition of the daily by the name of

‗AaJ‘. During the course of his cross-examination, the witness stated that he did

not know the place where the slab was exactly fitted in the wall before it fell. He

claimed that the photograph of the rock inscription / slab was handed over to him

at night by someone whom he could not identify. He also stated that the

photograph of the slab was published in Panchjanya of 13/20 December 1992.

547. The testimony of OPW-8 has been challenged by Dr Dhavan on the

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following grounds:

(i) The witness stated in his Examination-in-Chief that he was standing on the

western side of the disputed building at the time of demolition;

(ii) In the course of his cross-examination, the witness stated that he was

standing on the southern side of the disputed building at the time of

demolition and that nothing was clearly visible because of dust;

(iii) In spite of this, he claims to have seen the slab containing the inscription

falling;

(iv) He then states that on the day following the demolition, he went together

with Dr Sudha Mallaya and Dr S P Gupta to obtain pictures of the

inscription;

(v) Dr S P Gupta is a member of the RSS prior to 1975 and Dr Ramesh had

also mentioned having met Dr S P Gupta;

(vi) The witness was not able to identify the pictures of the disputed site, stating

that it was not clear from the photographs whether this was the western

boundary since he had visited the place only once in his lifetime; and

(vii) Initially, the witness stated that the rock inscription shown had fallen from

the western wall of the southern dome but after seeing the picture, he

stated that rock inscription which was available after the demolition of the

structure did not appear to be fixed on the wall.

The inconsistencies in the testimony of the witness, which have been copiously

analysed by Dr Dhavan, cast serious doubt on the credibility of the witness, his

presence at the site and of his having witnessed the recovery of the slabs from

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the disputed structure during the course of demolition on 6 December 1992. The

recovery of the stone inscription from the disputed site following the demolition

which took place on 6 December 1992 has not been established. The chain of

custody is not established. The evidence of OPW-8 on the recovery of the stone

inscription does not inspire confidence. On the one hand, reading his testimony, it

is evident that nothing was clearly visible to the witness because of the pall of

dust which was raised. How he saw a particular rock inscription or the slab on

which it was borne falling defies rational explanation. In fact, during the course of

his cross-examination, the witness stated that:

―Rock inscription /slab which was available after the

demolition of the structure does not appear to be fixed in the
wall.‖

Thus, from the evidence of OPW-8, it cannot be inferred that the rock inscription /

slab was recovered from the disputed site.

548. Since the recovery of the rock inscription from the disputed structure is not

borne out from the evidence, a crucial link in the case which has been sought to

be made out on the basis of the inscription, by the plaintiffs in Suit 5 is found to be

missing. The rock inscription would indicate the existence of a Vishnu Hari temple

at Ayodhya, having been constructed in twelfth century A.D. But once the

recovery of the inscription from the site in question is disbelieved, the inscription

cannot be the basis to conclude that the Vishnu Hari temple which is referred to in

the inscription was a temple which existed at the very site of the demolished

structure.

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N.13 The polestar of faith and belief

549. Setting course through history, the cornerstone of the edifice for the

Hindus is their faith and belief in the birth-place of Lord Ram as the incarnation of

Vishnu. Their faith is founded principally on the significance attached to Ayodhya

in the following:

(i) Religious scriptures, principally the association of Ayodhya

with the presiding deity of Lord Ram in Valmiki‘s Ramayan,

Skand Puran and Sri Ramacharitmanas. Their submissions

have been embellished in this Court by Mr P N Mishra

(appearing on behalf of defendant no 20 in Suit 5, Akhil

Bharatiya Shri Ram JanmBhumi Punrudhar Samiti), who used

religion and mythology to weave through the warp and weft of

history; and

(ii) Travelogues, gazetteers and books.

In weaving through the wealth of documents produced before this Court, it is

necessary to answer both the extent of judicial review of faith and belief and the

evidentiary value of the reliance on travelogues, gazetteers and books.

550. The first extract from Skand Puran upon which reliance has been placed is

thus:

―I bow down to the immutable Rama, the Supreme Brahman

whose eyes resemble lotus, who is as dark-blue as flower of
flax (in complexion) and who killed Ravana.

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Great and holy is the City of Ayodhya which is inaccessible to

perpetrators of evil deeds. Who would not like to visit
Ayodhya wherein Lord Hari himself resided?
This divine and splendid City is on the bank of the river
Sarayu. It is on par with Amaravati (the capital of Indra) and is
resorted to by many ascetics.
(Srimad Skandpuranam .II.VIII… 29-31)‖

The Skand Puran, contains an edict for the devotees to offer worship to Lord Ram

as a means of salvation. There is a reference to the place of birth of Lord

Ram in another extract:

―The devotee shall take his holy bath in the waters of
Sarayu and then worship Pindaraka who deludes sinners and
bestows good intellect on men of good deeds always. The
(annual) festival should be celebrated during Navaratris with
great luxury. To the west of it, the devotee should worship
Vighnesvara by seeking whom not even the least obstacle
remains (in the affairs) of men. Hence
Vighnesvara, the bestower of all desired benefits…
(Srimad Skandapuranam II.VIII.10.15-17)

"To the North-East of that spot is the place of the birth of

Rama. This holy spot of the birth is the means of achieving
salvation etc. It is said that the place of the birth is situated to
the East of Vighneswar, to the North of Vasistha and to the
West of Laumasa. Only by visiting it a man can get rid of
staying (frequently) in womb (i.e. rebirth). There is no
necessity for making charitable gifts, performing a penance or
sacrifices or undertake pilgrimage to holy spots. On the
Navami day the man should observe the Holy vow. By the
power of the holy bath and charitable gifts, he is liberated
from the bondage of births. By visiting the place of birth, one
attains that benefit which is obtained by one who gives
thousands of tawny-coloured cows every day. By seeing the
place of birth, one attains the merit of ascetics performing
penance in hermitage, of thousands of Rajasuya sacrifices
and Agnihotra sacrifices performed every year. By seeing a
man observing the holy rite particularly in the place of birth,
he obtains the merit of the holy men endowed with devotion
to mother and father as well as preceptors.
(Srimad Skandapuranam II.VIII.10.18-25)‖

551. Mr Zafaryab Jilani, learned Senior Counsel appearing on behalf of the Sunni

Central Waqf Board has a nuanced response to the submissions which are

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founded in the religious scriptures relied upon by Mr P N Misra. Learned Senior

Counsel argued that:

(i) There is no reference to the Ram Janmabhumi site either in Valmiki‘s

Ramayan or in Ramacharitmanas, the latter dating to 1574 A.D; and

(ii) The religious scriptures contain no reference to a Ram Janmabhumi temple

or to the Janmasthan temple.

The submission which has been urged is that there is no dispute about the faith

and belief of the Hindus that Lord Ram was born in Ayodhya but the Janmasthan

temple which has been worshipped, lies to the north of the disputed site.

Moreover, it has been stated that after 1855, the Chabutra in the outer courtyard

was worshipped as the place of birth. Hence, according to Mr Jilani, there is no

evidence of the area below the central dome being worshipped as the place of

birth of Lord Ram before the dispute over the site which arose in 1949.

552. Having set out the basis of the claim of the Hindus in the religious texts

outlined above, it becomes necessary to advert to the testimony of Jagadguru

Ramanandacharya, a witness whom Mr Jilani himself relied upon extensively.

During his oral arguments, Mr Jilani described the witness as ―a most scholarly

person who knows religion‖. He has been bestowed with the title of

Ramanandacharya. The witness suffered from a visual disability since infancy.

Surmounting these challenges, he obtained the degree of Acharya by pursuing

Prathma, Vidyavaridhi and Vachaspati at the Sampooranand Sanskrit

Vishwavidyalaya at Varanasi. The witness has a Ph.D. and a D.Lit and on the

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date of his evidence in lieu of the Examination-in-Chief had authored seventy six

publications. Except for Urdu, the witness stated that he had knowledge of almost

all Indian languages. In his Examination-in-Chief, the witness stated:

―According to my study and information, the disputed site at

Ayodhya is the birthplace of Lord Shri Ram and from time
immemorial and as per traditions and faith, the disputed site
is recognized as the birthplace of Lord Rama and that place is
being worshiped on a continuing basis.‖

The witness relied on an extract from Shri Tulsi Dohashatak by Goswami Tulsi

Das and on Episode 18 (Bal Khand) of Valmiki Ramayan and the Vaishnav

Khand of Skand Puran to sustain the faith and belief in the birth-place of Lord

Ram. In the course of his cross-examination, the witness was subjected to a

searching enquiry on his knowledge of Shri Ramcharitmanas, when he stated:

―…there is the concluding part of the book titled ‗Uttarkand‘.

I remember the fifth line of the 4 th Doha in the Uttarkand
relating to the Janam Bhoomi which goes like this – Janam
Bhoomi Mam Puri Suhavan Uttar Disi Bah Sarju Pavani
(Manas 7/4/5). The meaning of the above doha is – in my
pleasant City is situated Janam Bhoomi Sthal to the north of
which flows the Saryu river. It is wrong to suggest that there is
no mention of the Janam Bhoomi in this couplet. As a matter
of fact, it has been said that this pleasant city is my birthplace,
which in turn, means that in my pleasant city is the Janam
Bhoomi site.‖

The witness explained the significance of the fifth and seventh couplets during the

course of his cross-examination:

―In the fifth couplet, which starts with the word ‗Janam
Bhoomi‘, the word city stands for the whole city and not for any
particular site and the same thing has been mentioned by the
word ‗ihan‘ in the 7th couplet and the same very thing in couplet
No.4 has been described as ‗Awadhpuri‘. It is wrong to
suggest that in all these three couplets, the word ‗puri‘ has
been used in the sense of Janam Bhoomi. It is correct that in
Ramcharitmanas, except this couplet, there is no mention of

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Ram Janam Bhoomi elsewhere. It is true that there is mention

of Ayodhya and Awadhpuri at various
places in Ramcharitmanas. In Shri Ramcharitmanas, there
is no mention of the emergence of or habitation in Ayodhya.
However, in the Valmiki Ramayana-in the ‗Balkand‘ fifth
section – one does find mention to this effect.‖

553. Swami Avimuketshwaranand Saraswati (DW 20/2) stated that according to

his ―study and knowledge‖ the disputed site at Ayodhya is the birth-place of Shri

Ram and has been worshipped regularly by devotees. He founded his belief on

the scriptures, more particularly the Valmiki Ramayan to which he makes a

reference:

―That, Lord Narayana, in third Shlok Couplet) of fifteenth

Canto of Balkand of Srimad Valmiki Ramayana had himself,
before taking incarnation by thinking about his birthplace
proved the importance of birthplace.‖

Referring to the tenth chapter of the Ayodhya Mahatmya, the witness relied on the

importance of the Janmasthan:

―That, method of journey to Ayodhya has been described in

the Tenth Chapter of Ayodhya Mahatamya of Vaishnavkhand of Skand Puran,
famous as Sthal-Puran. Wherein Janmsthan of Shri Rama is clearly referred
and its importance is given. Sites described in Purans with reference to
above context are still in existence in Ayodhya. That is why every follower of
Sanatan Dharma, visits these sites, particularly takes Darshan at Shri Ram
Janam Bhoomi in Ayodhya, performs Parikarma and takes the dust of that
place to his head and feels gratified.‖
He adverted to the image of Varah (the Boar God) on the southern wall of the

eastern main gate. The witness narrated the other temples at which he had

worshipped in Ayodhya besides Ram Janmabhumi. He stated that there was a full

structure in 1990. He had entered from the eastern gate and that there was a wall

with a grill at the main gate. He took darshan at Ramchabutra. During the course

of his cross-examination, the witness stated that Ramacharitmanas does not

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contain a reference to the Ram Janmabhumi Mandir nor does it contain a specific

reference to the construction of a mosque upon the demolition of a temple. During

the course of his evidence, the witness alluded to the inscription on the disputed

building to which there was a reference in the 1960 Uttar

Pradesh District Gazetteer, Faizabad where there was a reference to the

construction of a building at a place where angels would descend. The witness

stated that the site represented the place of the incarnation of Lord Ram.

During the course of his cross-examination, the witness deposed on whether

there is a reference to the birth-place of Lord Ram in the scriptures. The witness

stated that there is no reference to any particular birth-place of Lord Ram in the

Purans except in the Ayodhya Mahatmya and Vaibhav Khand in the Skand Puran.

However, he stated that he did not recall the distance of any place from the

disputed site. During the course of his cross-examination, the witness furnished

an explanation for worship being conducted at Ramchabutra, stating that after an

outer enclosure was constructed near the mosque in 1858, the Hindus were not

allowed to go inside as a result of which they performed puja at the outer

Chabutra. This situation according to the witness was altered in 1949 after the

installation of the idols inside the mosque.

554. Satya Narain Tripathi (DW3/3) stated that in Ramacharitmanas, there is no

mention of ―any special place regarding the birth of Ramachandraji, but only a

mention about Ayodhya‖. Mahant Ramji Das (DW3/7) was asked during

crossexamination whether there is a reference in Sri Ramacharitmanas to the

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birthplace of Lord Ram. The question posed to and the answer of the witness are

extracted below:

―Question: Is there mention of praise of Ramachandraji in

3rd, 4th, 5th, 6th ,7th, 8th chopayees after above couplet No.71(b)
in Uttarkand of ―Shri Ramcharit Manas‖ and no mention
about the birth place of Ramachandraji made in them?
Answer: There is no mention about the birth place of
Ramachandraji in the above chopayees, it is only about
taking birth of Ramachandraji.‖

Relying on the Ayodhya Mahatmaya, the witness adverted to the reference to the

birth-place in relation to the location of Sitakoop – the wall near the disputed site.

According to the witness:

―Sitakoop is lying in Agnikona and the birthplace is in the

west of Sitakoop.‖

He explained that the distance from Sitakoop to the birth-place would be about

two hundred steps.

Both Dr Rajeev Dhavan and Mr Zafaryab Jilani contested the claim of the Hindus

that the place under the central dome of the disputed structure represents the

birth-place of Lord Ram. The evidence of the above witnesses was relied upon by

Mr Jilani to submit that: (i) the scriptures do not contain a reference to the site

called Ram Janmabhumi; (ii) there is no reference in the scriptures to the Ram

Janmabhumi temple or the Janmasthan temple; and (iii) there is an absence of

evidence that the place below the central dome was worshipped prior to 1950 by

the Hindus as the birth place of Lord Ram. Mr Jilani submitted that after 1855, the

Chabutra was being worshipped as the place of birth of Lord Ram, which belies

the notion that the place below the central dome was believed to represent Lord

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Ram‘s birth-place.

555. The Hindu witnesses to whom a reference has been made earlier have

furnished statements of their faith and belief in the place under the central dome

being the birth-place of Lord Ram. The witnesses explained the basis of their

belief by interpreting the texts of the scriptures: the Ayodhya Mahatmya, Valmiki

Ramayan and Ramacharitmanas. The cross-examination of the witnesses has

not established any basis for the court to be led to the conclusion that the faith

and belief of the Hindus, as portrayed through these witnesses is not genuine or

that it is a mere pretence. Matters of faith and belief lie in the personal realm of

the believer. That which sustains solace to the soul is inscrutable. Whether a

belief is justified lies beyond ken of judicial inquiry. This is not a case where the

witness statements indicate that the belief or faith is a veneer or that it is being

put-forth merely as a strategy in a litigation. Once the witnesses have deposed to

the basis of the belief and there is nothing to doubt its genuineness, it is not open

to the court to question the basis of the belief. Scriptural interpretations are

susceptible to a multitude of inferences. The court would do well not to step into

the pulpit by adjudging which, if any, of competing interpretations should be

accepted. Faith is a matter for the individual believer. Once the court has intrinsic

material to accept that the faith or the belief is genuine and not a pretence, it must

defer to the belief of the worshipper. This, we must do well to recognise, applies

across the spectrum of religions and their texts, Hinduism and Islam being among

them. The value of a secular constitution lies in a tradition of equal deference.

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556. The fact that a belief and faith is held is however a matter which is

distinct from the actual place where worship was offered. In deciding the latter,

there has to be a careful evaluation of the evidentiary record. The evidentiary

material in the present case consists among other things of

(i) Travelogues;

(ii) Gazetteers;

(iii) The documentary record pertaining to the genesis of and the course which

the disputes over the site in question followed; and

(iv) Documentary material pertaining to the use of the three domed structure.

557. In dealing with this aspect of the case, we must confront a two-fold difficulty

which the High Court perceived. The first facet of that difficulty pertains to

scrutinising documentary evidence dealing with over five hundred years of history.

The High Court gave expression to its difficulty in unravelling history:

―3672. What lies underneath? This question is of extreme

complication ranging in a period of more than 500 years‘ of
history. No clear picture emerges from various history
books… In fact, the contemporary record did not answer the
issues, one or the other way, with certainty but some record,
authored after about 200 years i.e., 18th Century, states
about existence of temple, its demolition and the construction
of the disputed building, while some well-known historians
dispute it and some history books are silent.‖

In another segment of its judgment, the High Court underscored: (i) the religious

importance of Ayodhya; and (ii) its significance for Vaishnavites. While dealing

with the unquestioned belief that Lord Ram was born at Ayodhya, the High Court

encountered another difficulty. This related to the attempt to link the birth-place of

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Lord Ram, as reflected in the scriptures, with an identified spot in the evidentiary

record.

The High Court alluded to the fact that the scriptures do not identify any particular

place in Ayodhya as the place of birth. The interpretation placed by the Hindu

witnesses particularly on Valmiki Ramayan and Ayodhya Mahatmya has been

adverted to earlier. The High Court was of the view that in the absence of a

‗specific designated‘ site in Ayodhya as the birth-place of Lord Ram, it was

difficult to enter a precise finding by retracing history and linking religious belief to

the situation on the ground. This emerges from the following extract from the

judgment of Justice Sudhir Agarwal:

―To our mind instead of puzzling ourselves in so much

literature etc., certain aspects which emerge from whatever
we have mentioned above may be summarised which
probably may give some idea as to how the questions are to
be answered. The antiquity of Ayodhya is not disputed. It is
also not disputed that Ayodhya is known as the principal
place of religion and mainly concerned with Vaishnavites, i.e.,
the followers of Lord Rama. Lord Rama was born at Ayodhya
and ruled there. The religious texts like Valmiki Ramayan
and Ramcharitmanas of Goswami Tulsidas and others
like Skandpuran etc. mention that Lord Rama was born at
Ayodhya and it is his place of birth but do not identify
any particular place in Ayodhya which can be said to be
his place of birth. On the one hand we do not get any idea
about the exact place or site but simultaneously we can
reasonably assume that once it is not disputed that Lord
Rama was born at Ayodhya there must be a place which
could be narrowed down at the site of his place of birth. It is
true that a search of a place of birth after long time even
today may not be very easy if one tried to find out in this
regard just three or four generations back. Therefore,…such
kind of inquiry in a matter of such an antiquity is almost
impossible. But when a dispute in such a manner is raised
then we go by the well accepted principle in law of evidence
particularly as applicable in civil cases, i.e., preponderance of
probability.‖
(Emphasis supplied)

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558. There are severe limitations in applying the test of a balance or

preponderance of probabilities in situations like the present where faith is founded

in aural traditions as much as in written text, where belief is nurtured by religion

as much as by mythology and cultural traditions borne in epics, music and

celebrations of festival provide balm to the soul of the believer. Bearing the

difficulties which the High Court has expressed in mind, it is now necessary to

analyse in further detail various threads of the documentary material.

559. We have, on the one hand, Abul Fazal‘s ‗Ain-e-Akbari‘. Colonel H S

Jerrett‘s English translation was first published in 1893-96. The second edition

corrected and further annotated by Sir Jadunath Sarkar refers to the Ain-e-Akbari

as:

―…an encyclopedia of the religion, philosophy and sciences of

the Hindus, preceded by the chronology and cosmography of
the Muslims, as required by literary convention, for comparison
with the Hindu ideas on the same subjects.‖

In his editorial introduction written on 17 May 1894, Jerrett had made a reference

to the range and diversity of the subjects covered:

―The range and diversity of its subjects (i.e. of the Ain-

eAkbari) and the untiring industry which collected and
marshalled, through the medium of an unfamiliar language,
the many topics of information to their minutest details,
treating of abstruse sciences, subtle philosophical problems,
and the customs, social, political and religious of a different
race and creed, will stand by an enduring monument of his
learned and patient diligence…Though there is much to be
desired, his comprehensive and admirable survey yet merits
the highest praise…‖

There is a section titled as Ramavatara or Ram-Incarnation in which the Ain-e-

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Akbari states:

―He was accordingly born during the Treta yuga on the ninth
of the light half of the month of Chaitra (March-April) in the
city of Ayodhya, of Kausalya wife of Raja Dasaratha.‖

In a segment titled ―The Subah of Oudh‖, there is a reference to Oudh which

runs

thus:
―Awadh (Ajodhya) is one of the largest cities of India. In is
situated in longitude 118o, 6‘ and latitude 27o, 22. In ancient
times its populous site covered an extent of 148 kos in length
and 36 in breadth, and it is esteemed one of the holiest
places of antiquity. Around the environs of the city, they sift
the earth and gold is obtained. It was the residence of
Ramachandra who in the Treta age combined in his own
person both the spiritual supremacy and the kingly office.‖

The footnote refers to Lord Ram:

―The 7th avatar, who in this capital of the solar dynasty

founded on the chariot wheel of Brahma, consummated the
glories of sixty generations of solar princes and as the
incarnate Rama, is the hero of the famous epic that bears his
name.‖

Mr Jilani has stressed that in the above extract there is no specific reference to

the existence of a temple representing Ram Janmabhumi. Ayodhya is, however,

referred to as the birth-place of Lord Ram. Much cannot be attributed to the

negative inferences based on what a book does not contain. Absence of a

reference to a temple may not be evidence of the absence of a temple. Equally,

the reference to a mosque is absent in the above extract.

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Travelogues, gazetteers and books

560. Learned Senior Counsel appearing for the plaintiffs in Suit 5 placed reliance

on the accounts of numerous travellers and gazetteers to highlight the religious

importance attached to Ayodhya and the disputed site for the Hindus:

Exhibit 19 – Suit 5: William Foster257 edited a book titled ―Early Travels in

India (1583-1619)‖ which contains narratives of seven Englishmen who travelled

in northern and western India during the reign of Akbar and Jahangir. These

travellers are:

―Ralph Fitch (1583-91); John Mildenhall (1599-1606);

William Hawkins (1608-13); William Finch (1608-11); Nicholas
Withington (1612-16); Thomas Coriyat (1612-17) and Edward
Terry (1616-19).‖

Among them, William Finch arrived in India in August 1608 at Surat with Captain

Hawkins. According to the Hindu parties, the significance of the account of

William Finch, who visited Ayodhya between 1608-1611 is that he did not find

any building of importance of Islamic origin. There is a reference in the travels of

William Finch to Ayodhya:

―To Oude (Ajodhya) from thence are 50c; a citie of ancient

note, and seate of a Potan king, now much ruined; the castle
built four hundred yeeres agoe. Heere are also the ruines of
Ranichand(s) castle and houses, which the Indians
acknowled(g)e for the great God, saying that he took flesh
upon him to see the tamasha of the world. In these ruins
remayne certaine Bramenes, who record the names of all
such Indians as wash themselves in the river running
thereby ; which custome, they say, hath continued foure
lackes of yeeres (which is three hundred ninetie foure
thousand and five hundred yeeres before the worlds
creation). Some two miles on the further side of the river is a
cave of his with a narrow entrance, but so spacious and full of

257 William Foster, ―Early Travels in India (1583-1619)‖, London (1921) at pg 176

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turnings within that a man may well loose himself there, if he

take not better heed ; where it is thought his ashes were
buried. Hither resort many from all parts of India, which carry
from hence in remembrance certaine graines of rice as blacke
as gunpowder, which they say have beene reserved ever
since. Out of the ruines of this castle is yet much gold tried.
Here is great trade, and such abundance of Indian asse-
horne that they make hereof bucklers and divers sorts of
drinking cups. There are of these hornes, all the Indians
affirme, some rare of great price, no jewell comparable, some
esteeming them the right unicorns horne.‖

The expression ―ruines of Ranichand(s) castle and Houses‖ has appended to it

a footnote stating: ―Ram Chandra, the hero of the Ramayana. The reference is

to the mound known as the Ramkot or fort of Rama.‖

561. Exhibit 133 – Suit 5: Joseph Tieffenthaler wrote his travel account in

Latin in his book titled ―Description Historiqueet Geographique Del‘inde‖.

Tieffenthaler was a Jesuit Missionary, reportedly proficient in Arabic, Persian and

Sanskrit and visited India in 1740. His travels were between 1743-1785 258. His

visit to Ayodhya is described in the text, which was made available during the

course of the trial in French. An English translation was furnished by the

Government of India in pursuance of an order of the High Court. Tieffenthaler‘s

account reads thus:

―Avad called as Adjudea, by the educated Hindus, is a city

of very olden times. Its houses are (mostly) made up of mud
only; covered with straw or tiles. Many (however), are made
of bricks. The main street goes from South to North and it has
a length of about a mile. The width (of the city) is a little
lesser. Its western side and that of North as well, are situated
on a mud hill. That of north-east is situated on knolls. Towards
Bangla it is united.

258 Jose K. John, The Mapping of Hindustan : A Fortotten Geographer of India, Joseph Tieffenthaler (1710-1785),
Proceedings of the Indian History Congress, Vol. 58 (1997) at pages 400-410

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Today, this city has been hardly populated, since the

foundation Bangla or Fesabad (1) – a new city where the
Governor established his residence – and in which a great
number (of inhabitants of Oude) settled in. On the South bank
(of Deva) are found various buildings constructed by the
nobles in memory of Ram, extending from East to West.

The most remarkable place is the one which is called (2)

Sorgadaori, which means: the celestial temple. Because they
say that Ram took away all the inhabitants of the city from
there to heaven: This has some resemblance/ similarity to the
Ascent of the Lord. The city, thus deserted, was repopulated
and was brought back to its earlier status by Bikarmadjit - the
famous king of Oude (OUDH) [OUDJEN] (3)

There was a temple in this place constructed on the elevated

bank of the river. But Aurengzeb, always keen to propagate
the creed of Mohammed and abhorring the noble people, got
it demolished and replaced with a mosque and two obelisks,
with a view to obliterate even the very memory of the Hindu
superstition. Another mosque build by the Moors is adjacent
to the one towards the East.

Close to Sorgadoari is a building constructed lengthways by

Nabairay_a Hindu, a formerly lieutenant of the Governor
(proprietor) of this region (a). But a place especially famous
is the one called Sitha Rassoi i.e. the table of Sita, wife of
Ram, adjoining to the city in the South, and is situated on
a mud hill.

Emperor Aurengzeb got the fortress called Ramcot

demolished and got a Muslim temple, with triple domes,
constructed at the same place. Others say that it was
constructed by ‘Babor’. Fourteen black stone pillars of 5
(/) span (4) high, which had existed at the site of the
fortress, are seen there. Twelve of these pillars now
support the interior arcades of the mosque. Two (of these
12) are placed at the entrance of the cloister. The two
others are part of the tomb of some ‗Moor‘. It is narrated
that these pillars, or rather this debris of the pillars
skillfully made, were brought from the Island of Lanca or
Selendip (called Ceyian by the Europeans) by Hanuman,
King of Monkeys.

On the left is seen a square box raised 5 inches above

the ground, with borders made of lime, with a length of
more than 5 ells(5) and a maximum width of about 4 ells.
The Hindus call it Bedi i.e. ‗the cradle. The reason for
this is that once upon a time, here was a house where
Beschan was born in the form of Ram. It is said that his
three brothers too were born here. Subsequently,

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Aurengzebe or Babor, according to others, got this place

razed in order to deny the noble people, the opportunity
of practicing their supersitions. However, there still
exists some superstitious cult in some place or other.
For example, in the place where the native house of Ram
existed, they go around 3 times and prostrate on the
floor. The two spots are surrounded by a low wall
constructed with battlement. One enters the front hall
through a low semi-circular door.
Not far from there is a place where one digs out grains of
black rice, burned into small stones, which are said to
have been hidden under the earth since the time of Ram.
On the 24th of the Tschet month, a big gathering of people
is done here to celebrate the birthday of Ram, famous in
the entire India. This vast city is a mile away from Bangla at
the east towards E. N. E such that its latitude also will be
greater by about one minute than that of Bangla.

The fortress constructed in square from situated on the

elevated bank of the river, is equipped with round and low
towers. The walls need to be repaired. It is uninhabited and is
not protected. Earlier, the Governors of the province had their
residence here. Sadatkhan frightened by a bad forecast got it
transferred to Bangla. Today, it is destroyed from top to
bottom.
In a space of 2 miles, from the place where the canons are
planted up to ‗Oude‘, the Gagra takes its course towards
east, making a double bend – one close to the western side
of the city and the other, a little distance from there, towards
the West. And bending from there towards the NE# and ¼ E,
it washes the city in the West; after that, it returns towards the
East, close to the northern side. But it has been changing its
course almost every year. Its river bed is equal (in width) to
that of Danube near the citadel of Ingoldstadt in Bavaria, but
the volume of water is less. In rainy season, it increases
breadth-wise in such a way that at some places, its breadth
exceeds a mile and a half.‖
(Emphasis supplied)

Tieffenthaler‘s account was relied on by various Hindu parties as it emphasises

the following features:

(i) It contains a reference to the belief of the Hindus that Lord Ram is the

human incarnation of Vishnu (described as Beschan in the account). The

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account sets out the belief of the Hindus that Lord Ram was born at the

site, the symbol of it being the ―Bedi‖ or ―cradle‖;

(ii) The account while adverting to the faith of the Hindus in Lord Ram makes a

reference to other associated places of worship including ―Sorgadaori‖

(Swarg Dwar) and ―Sitha Rassoi‖ (Sita Rasoi);

(iii) The account contains a reference to the alleged demolition by Aurangzeb

of ―the fortress called Ram Cot‖ and the construction of a mosque with

triple domes at the same place. Tieffenthaler however, also records that

according to some the mosque was constructed by Babur;

(iv) Tieffenthaler‘s account contains a reference to the use of fourteen black

stone pillars which had existed at the site of the erstwhile fortress. Twelve

of them are stated to support the interior arcades of the mosque. Two are

stated to be at the entrance of the cloister;

(v) He describes a square box raised 5 inches above the ground which

according to the Hindus is the cradle (representing the birth of Lord Ram);

(vi) The account notes that in spite of the alleged demolition (by Aurangzeb or

Babur), ―there still exists some superstitious cult in some place or other‖

that continues to worship at the site. An example of that is stated to be the

place where the ―native house‖ of Lord Ram is thought to have existed,

around which Hindus circumambulate (―go around‖) three times and

prostrate on the floor; and

(vii) The account makes a reference to the presence of a large gathering of

people to mark and celebrate the birthday of Lord Ram.

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Tieffenthaler‘s travels to Ayodhya were after 1740, which would have been a little

over three decades after the death of Aurangzeb. His account makes a reference

to the faith of the Hindu devotees and contains a reference to the alleged

demolition, in his opinion most likely to have been at the hands of

Aurangzeb, and the erection of a mosque on the site which is believed to be the

birth-place of Lord Ram. The account adverts to the use of many black stone

pillars in the structure of the mosque.

562. Exhibit 20 – Suit 5: Robert Montgomery Martin wrote the ―History,

Antiquities, Topography and Statistics of Eastern India‖ in three volumes.

Martin, born in Dublin in 1801, was an Anglo-Irish author and civil servant. 259 He

spent ten years in medical practice in Shillong, East Africa and New South Wales

besides working as a journalist in Calcutta where he established the ―Bengal

Herald‖.260

Martin‘s account on Ayodhya is as follows:

―The people of Ayodhya imagine, that after the death of
Vrihadbala, their city was deserted, and continued so until the
time of Vikrama of Ujjain, who came in search of the holy city,
erected a fort called Ramgar, cut down the forests by which
the ruins were covered, and erected 360 temples on the
places sanctified by the extraordinary actions of Rama, of his
wife Sita, of his brother Lakshman, and of his general
Mahavira. The only foundation probably for such a tradition is,
that Vikrama may have erected some temples, and that in the
Mahabharat the genealogy of the family is continued no lower
than the time of Vrihadbala, as being foreign to the subject of
the book; but in the sri Bhagwat Vrihadbala is succeeded by
29 princes, and in the Bangsalata by 24. These, taken
according to the scales of Rama's predecessors in Valmiki
and the Sri Ghagwat, would give 18 princes, and this will give
us 279, or 558 years, according as we call these succesions
259 Robert Montgomery Martin (Biographical details) – British Museum
260 F. H. H. King, Survey our empire! Robert Montgomery Martin (1801–1868), a bio-bibliography (1979)

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reigns or generations, bringing the existence of the family

down to the time nearly of Alexander; but none of the latter
princes rose to considerable power, and they were vassals of
the kings of Magadha. Their existence, however, throws a
great doubt on the whole story concerning Vikrama.

This Vikrama is usually supposed to have been the

personage from whom the era called Sambat is derived, and
according to the reckoning used in Kosala, this ere
commences 57 years before the birth of Christ, so that the
city had been then deserted about 280 years. How the places
remarkable for the actions of the God could be traced after
such a long interval, and amidst the forest, seems rather
doubtful; and the doubt will be increased, if we suppose that
the latter Vikrama, the son-in-law of the Emperor Bhoj, was
the person who constructed the temples at Ayodhya. This I
am inclined to think was probably the case, for although
Rama was probably worshipped before the time of the elder
Vikrama, yet his worship, as that peculiarly distinguishing a
sect of Bigots, seems to have been first established by
Ramanuja about the time of the latter Vikrama, who may from
thence be supposed peculiarly eager to discover the traces of
the deity of his own sect. Unfortunately, if these temples ever
existed, not the smallest trace of them remains to enable us
to judge of the period when they were built; and the
destruction is very generally attributed by the Hindus to the
furious zeal of Aurungzebe, to whom also is imputed the
overthrow of the temples in Benares and Mathura.‖

Martin‘s account notes some inconsistencies as to the exact ruler who is said to

have rediscovered Ayodhya and constructed the numerous temples. In his view

the worship of Lord Ram in the region was likely carried out even prior to the time

of Vikrama. Martin later refers to the destruction of temples and the erection of

mosques ―on the situations of the most remarkable temples‖ of which, he states

that the mosque at Ayodhya has ―every appearance of being the most modern‖.

His account (at pages 335 and 336) is as follows:

―The bigot by whom the temples were destroyed, is said

to have erected mosques on the situations of the most
remarkable temples, but the mosque at Ayodhya, which is
by far the most entire, and which has every appearance
of being the most modern, is ascertained by an
inscription on its walls (of which a copy is given) to have

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been built by Babur, five generations before Aurungzeb.

This renders the whole story of Vikrama exceedingly doubtful,
especially as what are said to be the ruins of his fort, do not in
any essential degree differ from those said to have belonged
to the ancient city, that is, consist entirely of irregular heaps of
broken bricks, covered with sol, and remarkably productive of
tobacco; and, from its name, Ramgar, I am inclined to
suppose that it was a part of the building actually erected by
Rama.

Although, I do not fail to visit the place, and whatever the

Hindus reckon remarkable, I did not choose to take any
measurements, so as to draw with any accuracy a plan of the
space which the ruins occupy, as the doing so might have
given offence to the Government of the Nawab Vazir, in
whose territory, separated from this district only by the river
Sarayu, they are situated.

I may in a general manner observe, that the heaps of bricks,

although much seems to have been carried away by the river,
extend a great way, that is, more than a mile in length, and
more than half a mile in width: and that although vast
quantities of materials have been removed to build the
Muhammedan Ayodhya or Fyzabad, yet the ruins in many
parts retain a very considerable elevation; nor is there any
reason to doubt, that the structure to which they belonged,
has been very great; when we consider that it has been
ruined for above 2000 years. None of the Hindu buildings at
present existing are in the least remarkable either for size for
architecture, and they are all not only evidently, but avowedly,
quite, modern. that is, they have been all erected since the
reign of Aurungzeb, most of them even within the memory of
man. Although they are built on what I have no doubt are the
ruins of the palace that was occupied by the princes of
the family of the sun, their being built on the spots, where
the events which they are intended to celebrate, actually
happened, would have been extremely doubtful, even had
the elder Vikrama built temples on the various places
which had been destroyed by Aurungzeb, so that the
spots selected by Vikrama might be known by tradition;
but the whole of that story being liable to strong suspicion, we
may consider the present appropriation of names of different
places as no better founded than the miracles, which several
of them are said to commemorate.

It is said that in digging for bricks many images have been

discovered, but the few which I was able to trace were too
much broken to ascertain what they were meant to represent,
except one at the convent (Aakhara) of Guptar, where
Lakshman is supposed to have disappeared. This represents
a man and woman carved on one stone. The latter carries

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somewhat on her head, and neither has any resemblance to

what I have before seen. The only thing except these two
figures and the bricks, that could with probability be
traced to the ancient city, are some pillars in the mosque
built by Babur. These are of black stone, and of an order
which I have seen nowhere else, and which will be
understood from the accompanying drawing. That they
have been taken from a Hindu building, is evident, from
the traces of images being observable on some of their
basis; although the images have been cut off to satisfy
the conscience of the bigot. It is possible that these
pillars have belonged to a temple built by Vikrama; but I
think the existence of such temples doubtful; and if they
did not exist, it is probable that the pillars were taken
from the ruins of the palace. They are only 6 feet high.‖
(Emphasis supplied)

Martin‘s account adverts to the inscription on the walls of the mosque on the

basis of a copy which was given to him and infers that the mosque was built by

Babur. The mosque at Ayodhya, he describes as having ―every appearance of

being the most modern‖. It also refers to the alleged destruction of Hindu places

of worship by Aurangzeb. Martin has also adverted to the presence of pillars in

the mosque made up of black stone. The account narrates that these have been

taken from a Hindu building which he infers from the traces of the images

observable on some of the pillars, although, ―the images have been cut off to

satisfy the conscience of the bigot‖. In Martin‘s view, it is unlikely that the ruins

rest on the exact spots where the historical events attributed to them occurred. To

his mind the whole story is of greater religious and mythological significance than

historical. Worship at these spots commemorates the significant events that are

believed by the Hindus to have occurred there.

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563. Exhibit 5 – Suit 5: Edward Thornton‘s Gazetteer titled ―Gazetteer of

the territories under the Government of East India Company and the

Native States on the Continent of India‖261 first published in 1858.

Thornton‘s Gazetteer contains a reference to ―an extensive establishment

called ―Hanumangurh, or Fort of Hanuman‖, with an annual revenue of 50,000

settled on it by Shuja-ud-daulah, ―formerly Nawaub Vizier‖. The revenues are

stated to be dispensed to about 500 bairagis or religious ascetics and other Hindu

mendicants of various descriptions ―no Mussulman being allowed with the

walls‖. Thornton‘s Gazetteer also refers to ―extensive ruins, said to be those of

the fort of Rama‖:

―Close to the town on the east, and on the right bank of the
Ghogra, are extensive ruins, said to be those of the fort of
Rama, king of Oude, hero of the Ramayana, and otherwise
highly celebrated in the mythological and romantic legends of
India. Buchanan observes, ―that the heaps of bricks,
although much seems to have been carried away by the river,
extend a great way: that is more than a mile in length, and
more than half a mile in width; and that, although vast
quantities of materials have been removed to build the
Mahomedan Ayodhya or Fyzabad, yet the ruins in many parts
retain a very considerable elevation nor is there any reason to
doubt that the structure to which they belonged has been very
great, when we consider that it has been ruined for above
2,000 years. ―The ruins still bear the name of Ramgur, or
―Fort of Rama; ―the most remarkable spot in which is that
from which, according to the legend, Rama took his flight to
heaven, carrying with him the people of his city; in
consequence of which it remained desolate until half a
century before the Christian era, and by him embellished with
360 temples. Not the smallest traces of these temples,
however now remain; and according to native tradition,
they were demolished by Aurungzebe, who built a
mosque on part of the site. The falsehood of the tradition
is, however, proved by an inscription on the wall of the
mosque, attributing the work to the conqueror Baber,
261 Edward Thornton, 1799-1875: A Gazetteer of the Territories Under the Government of the East-India
Company, And of the Native States On the Continent of India, London: W. H. Allen (1854).

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from whom Aurungzebe was fifth in descent. The mosque

is embellished with fourteen columns of only five to six feet in
height, but of very elaborate and tasteful workmanship, said
to have been taken from the ruins of the Hindoo fanes...
A quadrangular coffer of stone, whitewashed, five ells long,
four broad, and protruding five or six inches above ground, is
pointed out as the cradle in which Rama was….as the
seventh avtar of Vishnu; and is accordingly abundantly
honoured by the pilgrimages and devotions of the Hindoos.
Ayodhya or Oude is considered by the best authorities to be
the most ancient city in Hindostan.‖
(Emphasis supplied)

This account notes that no traces of the ancient temples remain. The gazetteer

relied on ―an inscription on the wall of the mosque‖ to attribute the construction

to Babur while also noting that the ―local tradition‖ ascribed the destruction of

the temples and the construction to Aurangzeb. The gazetteer has relied on the

opinion of Buchanan.

564. Exhibit 123- Suit 5: Surgeon General Edward Balfour wrote the

―Cyclopedia of India and of Eastern and Southern Asia, Commercial,

Industrial and Scientific: Products of the Mineral, Vegetable, and Animal

Kingdoms, Useful Arts and Manufactures‖262. Balfour‘s text refers to Ayodhya:

―AYODHYA, on the right bank of Gogra River, Near

Fyzabad in Oudh, is in latitude on 26o 48‘ 20‖ North; and
longitude 80o 24‘ 40‖ E. It has now a population of 7518 of
Hindus and Mahomadans but in ancient times it was the
capital of the kingdome of Kosala, the Modern Oudh, ruled
over by the great King Dasarath of the Solar line, and father
of Ram Chandra. At one time it is said to have covered an
area of 12 yojana, equal of 96 miles. During Buddhist
supremacy Ajodhya declined, but on the revival of
Brahmanism it was restored by King Vikramaditya (AD 57).
There are many Jain Temples and three mosques on the
site of three Hindu shrines, -the Janmsthan on the site
where Ram was born, the Swarg Dwar (Mandir) where his

262 Surgeon General Edward Balfour, Cyclopaedia of India and of Eastern and Southern Asia, Commercial,
Industrial and Scientific: Products of the Mineral, Vegetable, and Animal Kingdoms, Useful Arts and
Manufactures, Third Edition, London: Bernard Quaritch, 15 Piccadilly 1885

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remains were burnt, and the Tareta Ka Thakur, framed as

the scene of one of his great sacrifices. A mausoleum is
here of the Babu
Begum and is the finest in Oudh.‖
(Emphasis supplied)

565. Exhibit 6 – Suit 5: Alexander Cunningham, who was the Director

General of the Archaeological Survey of India compiled the work titled

―Archaeological Survey of India - Four Reports Made During the Years

186263-64-65‖263. Cunningham refers to Ayodhya thus:

―There are several very holy Brahmanical temples about

Ajudhya, but they are all of modern date, and without any
architectural pretensions whatever. But there can be no doubt
that most of them occupy the sites of more ancient temples
that were destroyed by the Musulmans. Thus Ramkot, or
Hanuman Garhi, on the east side of the city, is a small walled
fort surrounding a modern temple on the top of an ancient
mound. The name Ramkot is certainly old, as it is connected
with the traditions of the Mani Parbat, which will be hereafter
mentioned; but the temple of Hanuman is not older than the
time of Aurangzib. Ram Ghat, at the north-east corner of the
city, is said to be the spot where Rama bathed, and
Sargdwari or Swargadwari, the ―Gate of Paradise.‖ On the
north-west is believed to be the place where his body was
burned. Within a few years ago there was still standing a very
holy-Banyan tree called Asok Bat, or the ―Griefless Banyan,
―a name which was probably connected with that of
Swargadwari, in the belief that people who died or were
burned at this spot were at once relieved from the necessity
of future births. Close by is the Lakshman Ghat, where his
brother Lakshman bathed, and about one-quarter of a mile
distant, in the very heart of the city, stands the Janam Asthan,
or ―Birth-place temple‖ of Rama. Almost due west, and
upwards of five miles distant, is the Gupta Ghat, with its group
of modern white-washed temples. This is the place where
Lakshman is said to have disappeared, and hence its name
of Guptar from Gupta, which means ―hidden or concealed.‖
Some say that it was Rama who disappeared at this place,
but this is at variance with the story of his cremation at
Swargadwari.‖

263 Alexander Cunningham, Four Reports Made During the Years 1862-63-64-65, Archaeological Survey of India,
Volume 1, Simla: Government Central Press, 1871

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566. Exhibit 49- Suit 5: P Carnegy, who was posted as Officiating

Commissioner and Settlement Officer, Faizabad wrote the ―Historical Sketch of

Faizabad With Old Capitals Ajodhia and Fyzabad‖264 (1870). Carnegy

underscores the importance of Ayodhya to the faith of the Hindus:

―Ajudhia – Ajudhia, which is to the Hindu what Macca is to

the Mahomedan, Jerusalem to the Jews, has in the traditions
of the orthodox, a highly mythical origin, being founded for
additional security not on the earth for that is transitory, but on
the chariot wheel of the Great Creator himself which will
endure for over.‖

Carnegy refers to the Janmasthan, Swarga Dwar Mandir and Treta-Ke-Thakur.

He attributes the construction of the mosque to Babur in 1528, noting that it still

bears his name. In Carnegy‘s opinion, many of the columns of an erstwhile

temple have been used in the construction of the Babri mosque. These pillars as

he states, are made out of Kasauti stone and are carved. Carnegy who was a

settlement officer has adverted to the conflagration which took place in 1855

between the Hindus and Muslims. According to him, during the conflict, the

Hindus occupied Hanuman Garhi while the Muslims took possession of the

Janmasthan. The attempt of the Muslims to lead a charge on Hunuman Garhi was

repulsed by the Hindus resulting in the death of 75 Muslims who are buried in the

graveyard. The Hindus are stated to have then taken possession of the

Janmasthan. According to Carnegy until then both Hindus and Muslims alike

264 Historical Sketch of Faizabad With Old Capitals Ajodhia and Fyzabad by P. Carnegy, Officiating
Commissioner and Settlement Officer, Oudh Government Press, 1870

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worshipped in what he describes as the ―mosque-temple‖. However, since

colonial rule, a railing was put up within which, it has been stated that the Muslims

pray, while outside the fence the Hindus have raised a platform on which they

make their offerings. Carnegy‘s account is extracted below:

―The Janmasthan and other temples.- It is locally affirmed

that at the Mahomedan conquest there were three important
Hindu shrines, with but few devotees attached, at Ajudhya,
which was then little other than a wilderness. These were the
―Janmasthan,‖ the ―Sargadwar mandir,‖ also known as
―Ram
Darbar,‖ and ―Tareta-Ke-Thakur.‖ On the first of these the
Emperor Baber built the mosque which still bears his name,
A.D. 1528; on the second Aurangzeb did the same, A.D.
16581707; and on the third that sovereign, or his
predecessor, built a mosque according to the well-known
Mahomedan principle of enforcing their religion on all those
whom they conquered.
The Janmasthan marks the place where Ramchandar was
born. The Sargadwar is the gate through which he passed
into Paradise, possibly the spot where his body was burned.
The Tareta-Ke-Thakur was famous as the place where Rama
performed a great sacrifice, and which he commemorated by
setting up there images of himself and Sita. ―667. Babar's
mosque.- According to Leyden's Memoirs of Babar, that
emperor encamped at the junction of the Serwu and Gogra
rivers, two or three kos east from Ajudhya, on the 28th March,
1528, and there he halted seven or eight days, settling the
surrounding country. A well-known hunting-ground is spoken
of in that work, seven or eight kos above Oudh, on the banks
of the Sarju. It is remarkable that in all the copies of
Babar's life now known the pages that relate to his
doings at Ajudhya are wanting. In two places in the
Babari mosque the year in which it was built, 935 H.,
corresponding with 1528 A.D., is carved in stone, along
with inscriptions dedicated to the glory of that emperor.

If Ajudhia was then little other than a wild, it must at least

have possessed a fine temple in the Janamsthan; for
many of its columns are still in existence and in good
preservation, having been used by the Musalmans in the
construction of the Babari Mosque. These are of strong
close-grained dark slate-colored or black stone, called by
the natives Kasoti (literally touch-stone,) and carved with
different devices. To my thinking these strongly resemble
Budhist pillars that I have seen at Benares and
elsewhere. They are from seven to eight feet long, square

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at the base, centre and capital, and round or octagonal

intermediately

Hindu and Musalman differences.-The Janamsthan is within a

few hundred paces of the Hanuman Garhi. In 1855 when a
great rupture took place between the Hindus and
Mahomedans, the former occupied the Hanuman Garhi in
force, while the Musalmans took possession of the
Janamsthan. The Mahomedans on that occasion actually
charged up the steps of the Hanuman Garhi, but were driven
back with considerable loss. The Hindus then followed up this
success, and at the third attempt, took the Janamasthan, at
the gate of which 75 Mahomedans are buried in the
―Martyrs' grave‖ (Ganj-Shahid.) Several of the King's
Regiments wee looking on all the time, but their orders we not
to interfere. It is said that up to that time the Hindus and
Mahomedans alike used to worship in the mosque-
temple. Since British rule a railing has been put up to
prevent disputes, within which in the mosque the
Mahomedans pray, while outside the fence the Hindus
have raised a platform on which they make their
offerings.‖ (Emphasis supplied)

The various Hindu parties placed reliance on the account of Carnegy to establish

the belief of the Hindus that the Janmasthan was the place of birth of Lord Ram,

and the Kasauti columns were used in the construction of the mosque. There is a

reference to the carvings on the Kasauti pillars. Carnegy‘s account, which was

published in 1870 has adverted to the incident which took place in 1855 involving

a conflict between the Hindus and Muslims. He refers to worship being offered by

both Hindus and Muslims ―in the mosque-temple‖ prior to the incident and to the

construction of a railing thereafter, with a view to prevent disputes. Carnegy notes

that the railing was put up so as to separate the two communities, by allowing the

Muslims to worship within its precincts in the mosque while the Hindus had

outside it, raised a platform to make their offerings.

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567. Exhibit 7 – Suit 5: Gazetteer of Oudh (1877): The gazetteer contains a

description in the same terms as the account of Carnegy and therefore

does not need any further elaboration.

568. Exhibit 8 Suit – 5: AF Millet‘s ―The Report of Settlement of Land

Revenue, Faizabad District – (1880)‖ broadly embodies the contents of

Carnegy‘s account.

569. Exhibit 52 – Suit 5: H.R. Nevill, I.C.S. compiled and edited the work titled

―Barabanki: A Gazetteer being Volume XLVIII of the District Gazetteer of

the United Provinces of Agra and Oudh‖ (1902). This contains an account of

the clash between the Hindus and Muslims which occurred in the 1850s.

570. Exhibit 10 – Suit 5: ―The Imperial Gazetteer of India, Provincial

series,

United provinces of Agra and Oudh – Vol. II (Allahabad, Banaras, Gorakhpur,

Kumaon, Lucknow and Faizabad divisions and the native

states)‖. The Imperial Gazetteer has the following account of Ayodhya:

―Ajodhya was the capital of the kingdom of Kosala and

contained the court of the great king Dasaratha, fifty-sixth
monarch of the Solar line in descent from Raja Manu. The
opening chapters of the Ramayana recount the magnificence
of the city, the glories of the monarch, and the virtues, wealth,
and loyalty of his people. Dasaratha was the father of Rama
Chandra, the hero of the epic, whose cult has experienced a
great revival in modern times. With the fall of the last of the
Solar line, Raja Sumintra, the one hundred and thirteenth
monarch, Ajodhya became a wilderness and the royal family
dispersed. From different members of this scattered stock the
Rajas of Udaipur, Jaipur, &c., claim descent. Tradition relates
that Ajodhya was restored by king Vikramaditya of Ujjain,
whose identity is a matter of dispute. Ajodhya was of small

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importance in Buddhist times, when Saketa became the chief

city of Kosala. It is still uncertain where Saketa was situated,
and it has been suggested that it occupied part of the ancient
city of Ajodhya. Numismatic evidence points to the rule of a
line of independent Rajas, in or near Ajodhya, about the
commencement of the Christian era.‖

Referring to the ―present town‖, the gazetteer notes:

―The present town stretches inland from a high bluff

overlooking the Gogra. At one corner of a vast mound
known as Ramkot, or the fort of Rama, is the holy spot
where the hero was born. Most of the enclosure is
occupied by a mosque built by Babar from the remains of
an old temple, and in the outer portion a small platform
and shrine mark the birthplace. Close by is a larger
temple in which is shown the cooking-place of Sita, the
faithful wife of Rama. A lofty temple stands on the bank of
the Gogra at the place where Lakshmana bathed; and
Hanuman, king of the monkeys, is worshipped in a large
temple in the town, approached by an immense flight of
steps, which bears the name Hanuman Garhi. Other
noticeable temples built during the eighteenth and nineteenth
centuries are the Kanakbhawan, a fine building erected by a
Rani of Tikamgarh, the Nageshwarnath temple, Darshan
Singh's temple, and a small marble temple built by the
present Maharaja. Ajodhya also contains a number of Jain
temples, five of which were built in the eighteenth century to
mark the birthplaces of the five hierarchs who are said to
have been born at Ajodhya. Besides the mosque of Babar,
two ruined mosques, built by Aurangzeb, stand on the sites of
celebrated Hindu shrines-the Swargadwara, where Rama's
body was cremated, and the Treta-ka-Thakur, where he
sacrificed. An inscription of Jai Chand, the last king of Kanauj,
has been found in the latter. Three graves are reverenced by
Musalmans as the tombs of Noah, Seth, and Job, and the two
last are mentioned under those names in the Ain-i-Akbari. A
large mound close by, called the Maniparbat, is said to have
been dropped by Hanuman when carrying a portion of the
Himalayas, while another tradition asserts that it was formed
by the coolies who built Ramkot shaking their baskets as they
left work ; it possibly covers a ruined stupa.‖
(Emphasis supplied)

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571. Exhibit 23 - Suit 5: Hans Baker wrote his work ―Ayodhya‖265 in three

parts. The introduction states that the first part deals with the history of Ayodhya,

the religious movements which governed its development, the local context in

which this took concrete shape and the manner in which it is reflected in the

religious work, Ayodhya Mahatmya. Introducing his work, the author notes:

―…two matters of great consequence became evident. First

that the religious development of Ayodhya into a centre of
pilgrimage took place in the second millennium AD and
consequently the that the Ayodhyamahatmya in all its
versions belongs to this period; secondly that the growth of
the religious significance of the town was linked up with the
rise of the worship of Rama as the principal manifestation of
Visnu.‖

The author traces the History of Saketa/Ayodhya from 600 B.C. to A.D. 1000 in

Chapter I, noting that the site is situated on a curve of river Sarayu (Gogra) which

encircles the modern town on three sides. He states:

―In the centre of this site is an area of broken ground called

the Ramkot or Kot Ramchandar, which today is occupied for a
great part by temples and maths. Especially on its southern
side, however, several artificial mounds are found that are
hardly built on and are strewn with broken bricks and blocks
of stone, especially the so-called Kubertila on the
southwestern corner.

The site described above with a river surrounding it on three

sides and an area of elevated ground in the centre, not far
from a crossing of the river, seems to possesses all the
essential physical characteristics of an ancient settlement.
Two excavations in Ayodhya have been reported so far.‖

Baker notes that from the middle of the first century A.D., the Dattas of Kosala

were increasingly confronted with the Kushana power in the west which resulted

in a siege of a capital by Kanishka. According to Baker, following the reign of

Chandragupta - I in A.D 320 and the reign of his successor Samudragupta,

265 Hans Bakker, Ayodhya, Egbert Forsten Publishers (1986)

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Saketa was placed under the direct rule of Patliputara. There was a renewal of

Brahmanical institutions and learning in the latter half of fourth century A.D. in the

context of which it has been stated:

―During the early Gupta period the evolution of the

Brahmanic religion into Hinduism was accomplished. Along
with the deification of the king the theory of god‘s avataras on
earth – be it in the form of an idol or as a ‗historical‘ human
being – gained solid ground. By this development, as we
have seen, the way was paved for recognition of the glorious
town of Ayodhya of yore as the city of Saketa. So forceful was
this revival, that the Budhist pilgrim Fahsien, who visited
Saketa under Samudragupta‘s successor Chandragupta II,
hardly perceived anything of his interest in ―the great
country of Shachi‖ and its capital. What we accidentally learn
from his account is that Saketa was a walled town.‖

Tracing the history of the town in the fifth century, Baker notes:

―The fifth century would appear to be a crucial phase in the

history of the town. It saw Saketa/Ayodhya in the heyday of
its prosperity and ‗restored‘ to its ‗former‘ glory as capital of
the illustrious Iksvaku kings. It is true, owing to the
disintegration of the Gupta empire and the consequent
general recession, that this prestige suffered a serious
drawback in the following centuries, yet it safeguarded the
town from the same destiny that fall upon the majority of the
cities of the Gupta empire, namely a languishing existence
after the Gupta age resulting in a final disappearance from
the stage of history. Thanks to its recognition as the
legendary town of the Iksvakus, and most of all as the capital
of Lord Visnu himself in his incarnation of Rama, the town
never fully disappeared from the purview of the Hindus, and
consequently it could, when the circumstances were set for
such a development, reappear as one of holiest places of
North India. Like other holy places to come, Mathura and
Varanasi, ―which were practically abandoned after Gupta
times‖, the city reemerged in the beginning of the second
millennium.‖

Baker has noted that the survival of Ayodhya can also be attributed to its central

position in north India and its strategic value in the Gangetic plain. Under the

Delhi Sultanate of the thirteenth century, Ayodhya was to once again become a

provincial capital. In later times, its commercial and strategic importance came to
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be taken over by rival townships – Jaunpur in the fifteenth century, Faizabad in

the eighteenth century and by Lucknow towards the end of eighteenth and

beginning of the nineteenth century. Ayodhya did not fall into decay and is stated

to have witnessed a flourishing of the religious life in the city. Adverting to

Chinese sources, Baker observes:

―From Chinese sources as we know that King

Vikramaditaya, i.e. Skandagupta, had the royal court installed
in Ayodhya
(According to Paramartha), or ‗country of Srasvati‘ (according
to Hieun Tsang). It is beyond doubt that the ‗country of
Sravasti‘ refers to Kosala, the capital of which was at that
time Saketa/Ayodhya, not Sravasti. The possibility remains
open that the royal court had already moved from Pataliputra
to Saketa/Ayodhya during the reign of Kumaragupta. We
have seen that the first inscription featuring the name of
Ayodhya dated from the reign of this King. In the inscriptions
preserved the last Gupta ruler to mention Pataliputra is
Kumaragupta‘ father Candragupta II.‖

Baker notes the prevalence of a local tradition in Ayodhya which ascribes the

rediscovery of the town to Vikramaditya. This oral tradition was reported by

Martin in 1838, and after him by Cunningham and Carnegy (1870).

Analysis of accounts of travellers and the gazetteers

572. William Finch (1608-11) makes a reference to Oude (Ajodhya) ‗a citie of

ancient note, and seate of a Potan king now much ruined‖. Finch notes of

a castle built 400 years earlier and the ruins of ―Ram Chandra‘s castle

and houses‖266. Finch acknowledges the religious beliefs associated with

Lord Ram stating the purpose of his incarnation. Tieffenthaler (1770)

refers to the association of Lord Ram with Ayodhya, and there is a

266 Ram Chandra, the hero of the Ramayana. The reference is to the mound known as the Ramkot or fort of
Rama.

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reference to ―a temple in this place constructed on the elevated bank of

the river‖. Tieffenthaler states that

the temple was demolished by Aurangzeb and was replaced with a mosque.

Tieffenthaler has made a specific reference to the demolition by Aurangzeb of

the fortress called Ram Cot and to the construction of ―a Muslim temple with

three domes‖ at the same place. Tieffenthaler‘s account also notes that

according to some, the mosque was constructed by Babur. The account contains

a reference to fourteen black stone pillars, twelve of which support the interior

arcades of the mosque, two being placed at the entrance. His account also refers

to the presence of a square box raised five inches above the ground ―with a

length of more than 5 ells and a maximum width of about 4 ells‖. The Hindus,

according to Tieffenthaler, called it a cradle or Bedi based on the belief that once

upon a time there was a house where Beschan (Vishnu) was born in the form of

Lord Ram. Though, subsequently, Aurangzeb or Babur ―got this place

destroyed‖, the text contains an observation that in the place where the native

house of Lord

Ram existed, the Hindus ―go around 3 times and prostrate on the floor‖. There is

a reference to the gathering of devotees during the Chaitra month.

573. In assessing Tieffenthaler‘s account (and for that matter those of others) it

is necessary to distinguish between what he may have heard from others

from what he has actually noticed and observed. The former is hearsay.

Tieffenthaler‘s accounts of the existence of the mosque, a three domed

structure with black stone pillars is evidently based on his personal

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observation. His opinion that the mosque was constructed most likely by

Aurangzeb is evidently based on what he heard and is not something to his

personal knowledge. Similarly, any finding of fact that the mosque was

constructed upon the demolition of a temple needs independent verification

and cannot be based purely on Tieffenthaler‘s account. The account is

certainly of significant value when it adverts to the existence of the faith and

belief of the Hindus in Lord Ram and of the association of the place of birth

in close-proximity to the three-domed structure where a ―square box‖ was

worshipped as symbolizing the cradle of birth. The account has a reference

to the form of worship, by circumambulation and to the assembly of

devotees at the site.

574. Hamilton‘s account in the ―East Indian Gazetteer of Hindustan‖ (1828)

refers to Oude, ―situated on the right bank of the river Goggra. Referring

to the town, Hamilton notes that ―this town is esteemed one of the most

sacred places of antiquity.‖ He adverts to pilgrimages, ―where the

remains of the ancient city of Oude, the capital of the great Rama, are still

to be seen; but whatever may have been its former magnificence it now

exhibits nothing but a shapeless mass of ruins‖. He found ―a mass of

rubbish and jungle among which are the reputed sites of temples dedicated

to Rama, Seeta, his wife, Lakshman, his general, and

Hunimaun (a large monkey), his prime minister‖. Hamilton noticed the religious

mendicants, performing the pilgrimage drawn from ―the Ramata sect, who walk

round the temples and idols, bathe in the holy pools, and performed the

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customary ceremonies‖. While Hamilton evidently adverts to the belief and faith

in Lord Ram, to the temples at Ayodhya and to the customary forms of worship,

there is no specific observation either about a Ram Janmabhumi temple or to the

mosque.

575. Martin‘s account (1838) contains a reference to the destruction of temples

at Ayodhya ―generally attributed by the Hindus to the furious zeal of

Aurangzebe‖, noting that ―not the smallest trace of them remains‖. The

mosque at Ayodhya which Martin‘s states ―has every appearance of

being the most modern‖ is ascertained by the inscription on its walls to

have been built by Babur, five generations before Aurangzeb. Martin refers

to the belief of the people of Ayodhya that after the death of Vrihadbala,

their city was deserted until the time of ―Vikrama of Ujjain‖ who came in

search of the holy city and erected 360 temples on the places sanctified by

the belief of Lord Ram. Martin while referring to ―Vikrama‖, refers both to

the originator of the Samvat era and to the latter day Vikram. According to

Martin, it was likely that the worship of Lord Ram dates back to ―the time

of elder Vikrama‖ yet, his worship as a part of a sect must have been first

established by Ramanuja. These are a part of Martin hypothesising on the

origins of the city and its temples. That does not constitute evidence.

Martin, while referring to the pillars in the mosque built by Babur, notes that

these are of black stones and have been taken from a Hindu building,

which is evidenced by the images on some of their bases which have been

desecrated. According to Martin, these pillars would have been taken from

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the ruins of a palace. Martin‘s account, as the above analysis indicates, is

inferential. While he has spoken of his own observations in regard to the

mosque; of the faith and belief associated with Lord Ram; and the

presence of black stone pillars the account contains largely an account of

his own assessment of past history.

576. Edward Thornton‘s account in the ―Gazetteer of the territories under the

Government of East India Company‖ (1858) refers to ―extensive ruins, said to be

those of the fort of Rama‖. Thornton proceeds to cite extracts from a text

attributed to Buchanan. He makes a reference to the lore surrounding the

construction of 360 temples and to the belief of their demolition by Aurangzeb. His

attribution of the construction of a mosque on the site of a temple is not proof of a

historical fact. Thornton records what he heard: neither those who told him about

their belief nor the author of the document are available to be assessed in the

course of a cross-examination. Such an account cannot meet the rigorous

standards of acceptable evidence as well as the more relaxed standard of a

preponderance of probabilities which govern civil trials.

577. Mr Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central

Waqf Board, has stressed that in the above extract the gazetteer relies

upon ―an inscription on the wall of the mosque‖ to support the theory that

the mosque was constructed by Babur as opposed to the local tradition

which ascribed the construction of the mosque to Aurangzeb. There is

according to him, no specific reference to the worship by the Hindus under

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the middle dome of the mosque. However, it is relevant to note that

Thornton‘s observations are not personal and he has drawn an inference

from the text of Buchanan.

The purpose of the colonial government was to offer to the British public in ―a

cheap and convenient form‖ authentic information about India in the form of a

gazetteer. Bearing this caveat in mind, it is relevant to note that the above extract

adverts to:

(i) The ruins of ―Ramgur or Fort of Rama‖;

(ii) The presence of 14 Kasauti stone pillars in the mosque with ―elaborate

and tasteful workmanship‖ and;

(iii) A ―quadrangular coffer of stone‖, believed to be the cradle in which Lord

Ram was born as the avatar of Lord Vishnu.

578. Cunningham‘s ―Archaeological Survey of India‖ (1862-5) refers to

existence of ―several holy Brahmanical temples about Ajudhya‖ and that

the ―ancient temples were destroyed by the Musalmans‖. The report

states that ―in the very heart of the city, stands the Janam Asthan‖, or

―birth-place temple‖ of Ram‖. The text refers for Ramkot, Swargadwari

and notices that ―about one quarter of a mile distant, in the very heart of

the city, stands the Janam Asthan or

‗Birth-place temple‘ of Rama.‖ Mr Jilani contended that the reference to the

Janamsthan or birth-place temple of Ram is not the same as the disputed

structure and that it is located somewhere else. Cunningham‘s account notices a

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conglomeration of religious sites including Hanuman Garhi, Swarg Dwar,

Lakshman Ghat and the Janmasthan.

579. P Carnegy as Officiating Commissioner and Settlement Officer has in ―A

Historical Sketch of Faizabad‖ (1870) underscored the importance of

Ayodhya to the faith of Hindus, with a reference to the Janmasthan, Swarga

Dwar Mandir and Treta-Ke-Thakur. He attributes the construction of the

mosque to Babur in 1528 A.D. and notes that many of the Kasauti stone

columns of an erstwhile temple have been used in the mosque. His

account adverts to ―Ramkot the strong-hold of Ramchandar‖ and that the

fort was ―surrounded by 20 bastions‖, each of which was believed to have

been commanded by one of Lord Ram‘s famous generals. Carnegy

adverted to the conflagration which took place in 1855 between the

Hindus and Muslims and the resultant death of 75 Muslims who were buried in the

graveyard next to the disputed structure. According to Carnegy, until then, Hindus

and Muslims alike used to worship in what he describes as the ―mosquetemple‖.

However, since British Rule, a railing was put up to avoid future conflicts. Within it,

it has been stated, the Muslims pray, while outside the fence the Hindus raised a

platform on which they made their offerings. Carnegy‘s account refers to three

religious sites, including the Janmasthan. His account has attributed the

construction of the mosque to Babur, on the site of the Janmasthan which he

states, ―marks the place where Ram Chander was born‖.

580. Carnegy has relied on Leyden‘s memoirs on the expedition of Babur,

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which camped at the junction of the Sarayu and Gogra river, taking notice of the

fact that ―it is remarkable that in all the copies of Babur‘s life now known, the

pages that relate to his doings in Ajudhia are wanting‖. He noted two inscriptions

on the mosque, attributing its construction to 1528 A.D. There is a reference to the

Kasauti stone pillars used in the mosque, which to him, resemble Buddhist pillars.

Based on them, he hypothesises that ―if Ajudhia was then little other than a wild,

it must at least have possessed a fine temple in the Janmasthan; for many of its

columns are still in existence and in good preservation, having been used by the

Musalmans in the construction of the Babri Mosque.‖

Carnegy provides an account of the conflagration of 1855:

―Hindu and Musalman differences– The Janmasthan is

within a few hundred paces of the Hanuman Garhi. In 1855
when a great rapture took place between the Hindus and the
Muhammadans, the former occupied the Hanuman Garhi in
force, while the Musalmans took possession of the
Janmasthan. The Mohammadans on that occasion actually
charged up the steps of the Hanomangarhi, but were driven
back with considerable loss. The Hindus then followed up
this success, and at the third attempt took the Janmasthan at
the gate of which 75 Muhammadan are buried in the
‗martyr‘s grave‘ (ganj-i-shahid). Several of the King‘s
Regiments were looking on all the time, but their orders were
not to interfere. It is said that up to that time the Hindus and
Mohomedans alike used to worship in the mosque-temple.
Since British rule a railing has been put up to prevent the
disputes, within which in the mosque, the Mahomedans pray,
while outside the fence the Hindus have raised a platform on
which they make their offerings.‖

Carnegy‘s account is about fifteen years after the incident of violence which

resulted in the railing being put up by the British to separate the two communities

in their areas of worship. Mr Jilani challenged Carnegy‘s account insofar as it

refers to worship both by Hindus and Muslims within the ―mosque-temple‖ prior

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to the incident. Carnegy is indeed cautious in the above extract when he

observes that ―it is said‖ that upto that time, Muslims and Hindus alike prayed

inside the mosque. But the account indicates something on which there is no

dispute namely, that the railing came up after the incident as a barrier which

would separate the two communities in the conduct of religious worship –

Muslims in the inner courtyard and the Hindus in the outer courtyard. Significantly,

Carnegy‘s account links the construction of the platform by the Hindus to the

construction of the railing outside the mosque. According to his account, the

Hindus would have set up the platform outside the railing, faced with the

exclusion caused from the erstwhile mode of worship as a result of the

construction of the railing. As will be explored subsequently, the platform was

constructed in close-proximity to the railing from where worship was offered and

offerings were made to what the Hindus believe to be the birth-place of Lord

Ram.

581. The Imperial Gazetteer of India (1908) refers to a ―vast mound‖ known

as ―Ramkot, or the fort of Rama‖ and the existence at a corner of which is

the holy spot where Lord Ram was born. The gazetteer records that most

of the enclosure is occupied by a mosque built by Babur from the remains

of an old temple. It refers the existence of Ramchabutra in the outer portion

that ―marks the birthplace‖ of Lord Ram. The gazetteer notices the

presence of Sita Rasoi in closeproximity.

582. The District Gazetteer of Faizabad, (1960)267 attributes to Chandragupta

267 U.P. District Gazetteer Faizabad by Smt. Isha Basant Joshi. (1960 Edition)

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I the status of being the real founder of the kingdom ―which extended upto

Saketa (Awadh) and Prayaga (Allahabad)‖. The credit for restoration of Ayodhya

is attributed to Vikramaditya of Ujjain identified as Chandragupta II. The gazetteer

notes that the Chinese pilgrim Hiuen Tsang (630-644 A.D.) passed through Oudh

and referred to the existence of ―100 Buddhist monasteries, more than 3,000

Mahayani and Hinayani monks and only ten deva (non-Buddhist god) temples,

the non-Buddhist being but few in number‖. According to the gazetteer, most of

the area represented by the beliefs of the Hindus, to be the birth-place of Lord

Ram is occupied by the mosque. The claim by the gazetteer is that the mosque

was constructed on the remains of an old temple. It notices that in the outer

portion, a small platform and shrine marked the birth-place.

583. On his analysis of the gazetteereers and travelogues during the course of

the submissions, Mr Jilani formulated the following propositions:

(i) For the period dating from the construction of the mosque in 1528 until

1949, there is no evidence to establish the belief of the Hindus that the

place of birth of Lord Ram was below the middle dome of the mosque;

(ii) There is no evidence to show continuity of Hindu worship inside the

mosque onwards from 1828;

(iii) Ramchabutra is the birth-place of Lord Ram;

(iv) Ramchabutra as the birth-place is corroborated by the fact that in the Suit

of 1885, the plaintiff sought no prayer with respect to the inner courtyard;

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(v) It was only in Suit 5 of 1989 that the concept of a Janmasthan was

introduced prior to which the belief that the central dome was the birthplace

of Lord Ram did not exist; and

(vi) The theory of the middle dome marking the birth-place of Lord Ram only

comes from the statements of witnesses in Suit 5.

The formulation of Mr Jilani that the Ramchabutra is the birth-place will assume

significance from two perspectives: the first is that the entire site comprising of the

inner and outer courtyards is one composite property, the railing being put up by

the colonial government only as a measure to protect peace, law and order.

The second perspective is that Mr Jilani‘s submission postulates: (i) the

acceptance of the position that the birth-place is at an area within the disputed

site (the Ramchabutra, according to him); and (ii) there is no denying the close

physical proximity of Ramchabutra, which was set up right outside the railing.

Evidentiary value of travelogues, gazetteers and books

584. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the

plaintiff in Suit 4 urged that any use of historical material consisting of

travelogues and gazetteereers should be prefaced with caution. Dr Dhavan urged

that:

(i) Issues of title cannot be decided on the basis of historical work, treatises

and travelogues;

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(ii) The court ought not to pursue the line of approach adopted by counsel for

the plaintiffs in Suit 5 who attempted to draw inferences on the basis of

untested historical material; and

(iii) History cannot be read or interpreted without recourse to historiography.

Dr Dhavan faulted the methodology followed by Justice S U Khan and Justice

Sudhir Agarwal on the ground that their analysis proceeds on the basis of guess

work. Raising the issue as to how a preponderance of probabilities can be fed into

gazetteereers, he submitted that by relying upon historical material, the High

Court was essentially being asked (as he described it) ―to stand at the cusp of

guess work‖.

585. Analysing the submissions which have been urged, we must at the outset

advert to the decision of the Punjab Chief Court in Farzand Ali v Zafar Ali268. In

that case, there was a dispute between the Mutawalli of a mosque and the

defendants, who were descendants of the late Imam, over certain properties. The

Mutawalli claimed it as a part of a religious endowment. The court held:

―We are inclined to think that the use of the historical

works to establish title to the property cannot be justified
on the strength of section 57 of the Indian Evidence Act.
The question of title between the trustee of a mosque,
though an old and historical institution, and a private
person cannot, in our opinion, be deemed to be a
―matter of public history‖ within the meaning of the said
section.

We must, therefore, exclude this piece of evidence from

consideration, and we do not think that this exclusion would
make any difference in the result. The description contained
in the two books does not advance the case for the plaintiff to
any appreciable extent, and, indeed, this description can be
gathered from other admissible evidence on the record.‖

268 (1918) 46 IC 119

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(Emphasis supplied)

A similar view was adopted by a two judge Bench of this Court in Karnataka

Board of Waqf v Government of India311, where Justice Rajendra Babu

observed:

―8….As far as a title suit of civil nature is concerned, there is

no room for historical facts and claims. Reliance on borderline
historical facts will lead to erroneous conclusions. The
question for resolution herein is the factum of ownership,
possession and title over the suit property. Only admissible
evidence and records could be of assistance to prove this.‖

586. Section 57312 of the Evidence Act 1872 elucidates facts of which judicial

notice must be taken by the court. After delineating 13 categories of fact of which

311 (2004) 10 SCC 779

312 57. Facts of which Court must take judicial notice.—The Court
shall take judicial notice of the following facts:—
[(1) All laws in force in the territory of India;]
(2) All public Acts passed or hereafter to be passed by Parliament [of the United Kingdom], and all local and
personal Acts directed by Parliament [of the United Kingdom] to be judicially noticed;
(3) Articles of War for [the Indian] Army, [Navy or Air Force];
[(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of
Parliament and of the legislatures established under any law for the time being in force in a Province or in the
State;]
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great
Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the [Courts in [India]], and all Courts out
of [India] established by the authority of 8[the Central Government or the Crown Representative]: the seals of
Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized
to use by [the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the
force of law in [India];
judicial notice may be taken, it stipulates that ―in all these cases, and also on all

matters of public history, literature, science and arts, the court may resort to

appropriate books or documents for reference‖. The above provision enables the

court to resort ―for its aid‖ to books and reference documents inter alia on

matters of public history.

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587. While extensive reliance has been placed on the gazetteereers by

counsel representing the plaintiffs in Suit 5 and by other counsel appearing for the

Hindu parties, it is necessary to read them in the context of the principles of law

which govern the reliance on gazetteereers.

588. Section 81 of the Evidence Act 1872 requires the court to ―presume

the genuineness of every document purporting to be‖ any Official Gazetteere or

the

Government Gazette ―of any colony, dependency or possession of the British

Crown‖.313 Section 81 raises a presumption of the genuineness of the document

(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any
public office in any State, if the fact of their appointment to such office is notified in [any Official Gazette]; (8) The
existence, title and national flag of every State or Sovereign recognized by [the Government of India]; (9) The
divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the
Official Gazette;
(10) The territories under the dominion of [the Government of India];
(11) The commencement, continuance, and termination of hostilities between [the Government of India] and any
other State or body of persons;
(12) The names of the members and officers of the Court and of their deputies and subordinate officers and
assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors,
vakils, pleaders and other persons authorized by law to appear or act before it; (13) The rule of the road, [on
land or at sea].
In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its
aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and
until such person produces any such book or document as it may consider necessary to enable it to do so.

313
Section 81 of the Evidence Act 1872 provides thus:
Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents - The Court shall
presume the genuineness of every document purporting to be the London Gazette, or [any Official Gazette, or the
Government Gazette] of any colony, dependency of possession of the British Crown, or to be a newspaper or
journal, or to be a copy of a private Act of Parliament [of the United Kingdom] printed by the Queen's Printer, and
of every document purporting to be a document directed by any law to be kept by any person, if such document
is kept substantially in the form required by law and is produced from proper custody.
and not of its contents. When the court has to form an opinion on the existence of

a fact of a public nature, Section 37 of the Evidence Act 269 indicates that any
269 Section 37 of the Evidence Act 1872 provides thus :
Relevancy of statement as to fact of public nature, contained in certain Acts or notifications.- When the
Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a
recital contained in any Act of Parliament [of the United Kingdom], or in any [Central Act, Provincial Act, or [a
State Act], or in a Government notification or notification by the Crown Representative appearing in the Official
Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any

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statement of it in a government gazette is a relevant fact. While gazetteereers

have been noticed in several decisions of this Court, it is equally important to note

that the reliance placed on them is more in the nature of corroborative material.

589. In Rajah Muttu Ramalinga Setupati v Perianayagum Pillai270, the Privy

Council dealt with an objection to the judgment of the High Court on the ground

that excessive weight had been given to the reports of Collectors. In that context,

the Privy Council held:

―Their Lordships think it must be conceded that when these

reports express opinions on the private rights of parties,
such opinions are not to be regarded as having judicial
authority or force. But being the report of public officers
made in the course of duty, and under statutable authority,
they are entitled to great consideration so far as they
supply information of official proceedings and historical
facts, and also in so far as they are relevant to explain the
conduct and acts of the parties in relation to them, and the
proceedings of the Government founded upon them.‖
(Emphasis supplied)

The Privy Council cautioned against the use of the report of the Collector when it

opined on matters relating to private rights. But as records of official proceedings

or historical facts, and to explain the conduct of parties in relation to them, they

would provide useful material.

In Ghulam Rasul Khan v Secretary of State for India in Council 316, the Privy

Council held:

―…statements in public documents are receivable to

prove the facts stated on the general grounds that they were
made by the authorized agents of the public in the course of
official duty and respecting facts which were of public interest

Dominion, colony or possession of His Majesty is a relevant fact.

270 (1873-74) 1 IA 209

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or required to be recorded for the benefit of the Community:

Taylor‘s, Law of Evidence, 10th Ed., S. 1591). In many
cases, indeed, in nearly all cases, after a lapse of years it
would be impossible to give evidence that the statements
contained in such documents were in fact true, and it is
for this reason that such an exception is made to the rule
of hearsay evidence.‖
(Emphasis supplied)

In Sukhdev Singh v Maharaja Bahadur of Gidhaur317, this Court explored the

nature of a zamindari and examined the District Gazetteer in that context. The

court observed:

―The statement in the Gazetteer is not necessarily

conclusive, but the Gazetteer is an official document of some
value, as it is compiled by experienced officials with great
care after obtaining the facts from official records. As Dawson
Miller,
C.J. has pointed out in Fulbati‘s case [AIR 1923 Patna 453]
there are a few inaccuracies in the latter part of the statement
quoted above, but so far as the earlier part of it is concerned,
it seems to derive considerable support from the documents
to which reference is made.‖

In the above extract, the court carefully calibrated its reliance on the gazetteereer,

noting that it was not ―necessarily conclusive,‖ but of ―some value‖. The

portion, which was relied upon by the court, as it noted, derived considerable

support from documents and was hence grounded in them. The rest was not

relied upon. The court independently assessed its corroborative value. It rejected

one part and the part which it accepted was found to derive support from other

316
1925 SCCOnLine PC 12
317
(1951) SCR 534
documentary material. In other words, the contents of the gazetteereer, even in so

far as they were acceptable, were corroborative.

590. In Mahant Shri Srinivasa Ramanuj Das v Surajnarayan Dass318, Justice

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Raghubar Dayal, while dealing with the contents of O‘ Malley‘s Puri Gazetteer of

1908, which had elucidated the history of a Math observed:

―It is urged for the appellant that what is stated in the

Gazetteer cannot be treated as evidence. These statements
in the Gazetteer are not relied on as evidence of title but as
providing historical material and the practice followed by the
Math and its head. The Gazetteer can be consulted on
matters on public history.‖

The above observations indicate that the statements in the gazetteer were not

relied on as evidence of title but as providing a historical background including on

matters relating to the practice followed by the Math. A clear distinction must be

drawn between relying on a gazetteereer to source a claim of title (which is

impermissible) and as reference material on a matter of public history (which the

court may consult to an appropriate extent with due circumspection).

In Vimla Bai v Hiralal Gupta319, the issue was whether a female bandhu was

entitled to succeed to the estate of the male holder through her mother‘s side

within five degrees of the male holder. On the issue of the inam register, this

Court observed that it had ―great evidentiary value‖ but its entries had to be

considered in the context of other evidence on the record. On the evidentiary

value of an official gazette, the two judge Bench of this Court dealt with the

318
1966 Supp. SCR 436
319
(1990) 2 SCC 22
provisions of Section 37 and Section 57(13) of the Evidence Act 1872 in the

context of migration and observed:

―4. ... Thus, it is clear that migration cannot be presumed but

it must be established by adduction (sic) of evidence. The

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question then arises is whether the recital in Indore State

Gazette relied on, at the appellate stage, can form the sole
base to establish that the plaintiff's family were the migrants
from Mathura in U.P. Section 37 of the Evidence Act, 1872
postulates that any statement made in a government gazette
of a public nature is a relevant fact. Section 57(13) declares
that on all matters of public history, the court may resort for its
aid to appropriate books or documents of reference, and
Section 81 draws a presumption as to genuineness of
gazettes coming from proper custody. Phipson on Evidence,
the Common Law Library (Thirteenth Edition) at page 510
paragraph 25.07 stated that the government gazettes ... are
admissible (and sometimes conclusive) evidence of the
public, but not of the private matters contained therein...

5. The statement of fact contained in the official Gazette

made in the course of the discharge of the official duties
on private affairs or on historical facts in some cases is
best evidence of facts stated therein and is entitled to
due consideration but should not be treated as
conclusive in respect of matters requiring judicial
adjudication. In an appropriate case where there is some
evidence on record to prove the fact in issue but it is not
sufficient to record a finding thereon, the statement of
facts concerning management of private temples or
historical facts of status of private persons etc. found in
the official Gazette may be relied upon without further
proof thereof as corroborative evidence.‖
(Emphasis supplied)

A statement of fact contained in the Official Gazette made in the course of the

discharge of official duties on private affairs or on historical facts in ―some

cases‖ is the best evidence of facts and is entitled to ―due consideration‖.

However, it should not be treated as conclusive on matters requiring judicial

adjudication.

Questions of title raise issues for adjudication. Conflicting claims of title require

judicial adjudication. Statements contained in a text of history or in a gazetteer

cannot conclude the issue of title.

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591. In Bala Shankar Maha Shanker Bhattjee v Charity Commissioner,

Gujarat State320, the issue was whether the temple of Kalika Shrine on Pavagadh

was a public trust within the meaning of the Bombay Public Trust Act 1950. In this

context, a two judge Bench of this Court held:

―22…It is seen that the Gazette of the Bombay Presidency, Vol.

III published in 1879 is admissible under Section 35 read with
Section 81 of the Evidence Act, 1872. The Gazette is admissible
being official record evidencing public affairs and the court may
presume their contents as genuine. The statement contained
therein can be taken into account to discover the historical
material contained therein and the facts stated therein is
evidence under Section 45 and the court may in conjunction
with other evidence and circumstance take into
consideration in adjudging the dispute in question, though
may not be treated as conclusive evidence.‖
(Emphasis supplied)

In other words, the gazette was not treated to be independent evidence of a

conclusive nature in itself. The court has a caution in the above extract. The

contents of the gazetteer may be read in conjunction with other evidence and

circumstances. They may be taken into consideration but would not be

conclusive evidence.

[See also the decision in Aliyathammuda Beethathebiyyappura Pookoya v

Pattakal Cheriyakoya321].

592. The historical material which has been relied upon in the course of the

proceedings before the High Court must be weighed in the context of the salutary

principles which emerge from the above decisions. The court may have due

320
1995 Supp (1) SCC 485
321
2019 SCCOnLine 953
regard to appropriate books and reference material on matters, of public history.

Yet, when it does so, the court must be conscious of the fact that the statements

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contained in travelogues as indeed in the accounts of gazetteers reflect opinions

on matters which are not amenable to be tested by cross-examination at this

distant point of time. Consequently, where there is a dispute pertaining to

possession and title amidst a conflict of parties, historical accounts cannot be

regarded as conclusive. The court must then decide the issue in dispute on the

basis of credible evidentiary material.

593. Interpreting history is an exercise fraught with pitfalls. There are evident

gaps in the historical record, as we have seen from the Babur-Nama.

Translations vary and have their limitations. The court must be circumspect

in drawing negative inferences from what a historical text does not contain.

We are not construing a statute or a pleading. We are looking into historical

events knit around legends. stories, traditions and accounts written in a

social and cultural context different from our own. There are dangers in

interpreting history without the aid of historiography. Application of legal

principles to make deductions and inferences out of historical context is a

perilous exercise. One must exercise caution before embarking on the

inclination of a legally trained mind to draw negative inferences from the

silences of history. Silences are sometimes best left to where they belong -

the universe of silence.

594. In a contribution to the Times Literary Supplement on 19 June 1953 titled

―Victorian History‖, E.H Carr had the following caution:

―There is a two-way traffic between past and present, the
present being moulded out of the past, yet constantly

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recreating the past. If the historian makes history, it is equally

true that history has made the historian … The present-day
philosopher of history, balancing uneasily on the razor edge
between the hazards of objective determinism and the
bottomless pit of subjective relativity, conscious that thought
and action are inextricably intertwined, and that the nature of
causation, in history no less than in science, seems the
further to elude his grasp the more firmly he tries to grapple
with it, is engaged in asking questions rather than in
answering them.‖271

In a case such as the present, history presents another difficulty: in Eastern

philosophy, religious tradition is transmuted through generations by modes not

confined to written records. Marc Bloch in his work titled ―The Historian‘s

Craft‖272, spoke of this when he said:

―For, unlike others, our civilization has always been

extremely attentive to its past. Everything has inclined it in
this direction : both the Christian and the classical heritage.
Our first masters, the Greeks and the Romans, were history-
writing peoples. Christianity is a religion of historians. Other
religious systems have been able to found their beliefs
and their rites on a mythology nearly outside human
time.‖ (Emphasis supplied)

While we have made a reference to the accounts of travellers and gazetteers, we

read them with caution. The contents of these accounts cannot be regarded as

being conclusive on the issue of title which has necessitated an adjudication in

the present proceedings. While the gazetteers may provide to the court a glimpse

on matters of public history, history itself is a matter of divisive contestation. While

the court is not precluded from relying on the contents as relevant material, they

must be read together with the evidence on the record in order to enable the court

to enter its findings of fact in the course of the present adjudication. Above all, the

271 Introduction by Richard J Evans in E.H. Carr, What is History?, Penguin (2018 reprint) at page 12
272 Marc Bloch, The Historian‘s Craft, Penguin (2019 reprint), at page 4

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court must sift matters which may be of a hearsay origin in its effort to deduce the

kernel of truth which lies hidden in the maze of conflicting claims. Travellogues

and gazetteers contain loose fragments of forgotten history. The evidentiary value

to be ascribed to their contents necessarily depends upon the context and is

subject to a careful evaluation of their contents. Our analysis has included in the

balance, the need for circumspection, as we read in the accounts of travellers and

gazetteers a colonial perspective on the contest at the disputed

site.

N.14 Historian‘s report

595. On 13 May 1991, four historians prepared a document which is titled:

―Babri Mosque or Rama‘s Birth Place? Historians‘ Report to the Indian

Nation‖. The report has been authored by (i) Professor RS Sharma, formerly a

Professor at Delhi University and Chairperson of the Indian Council of Historical

Research; (ii) Professor M Athar Ali, formerly a Professor of History at Aligarh

Muslim University and a former President of the Indian History Congress; (iii)

Professor D N Jha, Professor of History, Delhi University; and (iv) Professor Suraj

Bhan, Professor of Archaeology and Dean, Faculty of Social Sciences,

Kurukshetra University, Haryana. The report was submitted under a covering

letter dated 13 May 1991 by Professor R S Sharma, Professor M Athar Ali,

Professor D N Jha and Professor Suraj Bhan.

The significant observations in the report are:

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(i) There is no basis in the Skandpuran (Ayodhya Mahatmya) to indicate the

site of Babri Masjid as the birth-place of Lord Ram;

(ii) The carvings on the pillars of the mosque do not indicate a Vaishnavite

association;

(iii) The brick bases which were found in the excavation conducted by

Professor BB Lal in 1979 were mentioned by him only in 1990 though

several papers had been published by him;

(iv) Professor B B Lal did not mention the pillar bases in his report submitted to

the ASI in 1979-80;

(v) No stone pillars or architecture of roof material of a temple were found in

the debris of the trenches where the pillar bases stood; and

(vi) There is no mention of Babri Masjid in Ram Charitmanas composed in

1675-76.

The conclusions in the study were:

(i) No evidence exists in the texts to indicate that before the eighteenth

century any veneration was attached to a spot in Ayodhya as being the

birth site of Lord Ram;

(ii) There are no grounds for supposing that a temple of Lord Ram, or any

temple, existed at the site where Babri Masjid was built in 1528-29;

(iii) The legend that Babri Masjid occupied the site of Lord Ram‘s birth did not

arise until the late eighteenth century; and that a temple was destroyed to

build a mosque was not asserted until the beginning of the nineteenth

century; and

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(iv) The ―full-blown legend‖ of the destruction of the temple at the site of the

birth of the Lord Ram and Sita Ki Rasoi dates to 1850 after which there is a

―progressive reconstruction of imagined history, based on faith‖.

596. Justice Sudhir Agarwal noted that the report had not been signed by

Professor D N Jha, a fact which was admitted by Professor Suraj Bhan (PW 16)

who deposed in evidence. The report indicated that the material from the

excavations of Professor B B Lal had not been available for inspection to the four

historians.

Having extracted from the deposition of PW 16, Justice Agarwal rejected his

expertise on the ground that he was an archaeologist and not an authority on

medieval history.

597. Justice Agarwal proceeded to analyse the evidence of Suvira Jaiswal

(PW 18), formerly a Professor at Jawahar Lal Nehru University. PW 18 stated that

her knowledge about the destroyed site was on the basis of newspapers or the

work of other historians. Justice Agarwal questioned the credentials of PW 18,

noting that she was a doctoral student under the guidance of Professor R S

Sharma who was a co-author of the report. Ultimately, he concluded that the

report had not been signed by all the four historians (Professor DN Jha not having

signed it) and the opinion of an alleged expert (PW 18) was not based on her

study and research but a reflection of what others had written. Accordingly, the

learned judge held that it was not credible evidence under Section 45 of the

Evidence Act.

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Dr Dhavan has submitted that on the sole basis of the report not having been

signed by Professor D N Jha, Justice Sudhir Agarwal erroneously proceeded to

make strictures against the four historians. He urged that while assessing the

credibility of the historians, the learned Judge confounded his assessment of PW

18 with the authors of the report. These observations, it has been urged did not

pertain to the historians but to PW 18.

598. We are of the view that Justice Agarwal has been unjustifiably harsh on

the four historians. The learned judge seems to have confounded his criticism of

PW 18 (who had only relied on the work of others without any independent

assessment) with the report of the historians. PW 18 was not part of the team of

historians. The fact that one of the four historians did not sign on the covering

document was not reason enough to discard the work in its entirety. The weight

which could be attributed to the historians‘ report is a distinct matter but, while

analysing this aspect, it was not necessary for the High Court to make

observations in regard to the personal standing and qualifications of the

historians. It is thus necessary to clarify that those observations were

unnecessary for the exercise which was being embarked upon by the High Court.

Having said this, it is evident from the report of the four historians that they did

not have the benefit of inspecting the material on the basis of which Dr B B Lal

had conducted his research in 1979. But that apart and more significantly, the

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report by the historians pre-dates the material which has emerged in the form of

the ASI report which was prepared during the pendency of the suit in pursuance

of the directions of the High Court. Since the four historians did not have the

benefit of that material which has now been assessed by this Court in the earlier

segment of this judgment, it is not necessary to carry the matter any further save

and except to clarify that the historians‘ report which is prior to the report of ASI,

cannot carry any significant degree of weight, since they have not had the benefit

of analysing the material which has emerged from the ASI report. The inferences

which have been drawn by the historians in regard to the faith and belief of the

Hindus in the birth-place of Lord Ram constitute their opinion. Evidence having

been led in the suits, this Court cannot rest a finding of fact on the report of the

historians and must evaluate the entirety of the evidence. The issue of title,

insofar as Suit 5 is concerned, has to be decided together with Suit 4 on an

overall assessment of the evidence. Hence, at the present stage, the next

segment of the judgment will proceed with analyzing Suit 4. The question of title

will be ultimately adjudicated after marshaling the entirety of the evidence.

O. Suit 4: Sunni Central Waqf Board

O.1 Analysis of the plaint

599. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf

Board. As amended, the following reliefs have been sought in the plaint:

―(a) A declaration to the effect that the property indicated by

letters A B C D in the sketch map attached to the plaint is
public mosque commonly known as ‗Babri Masjid‘ and that

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the land adjoining the mosque shown in the sketch map by

letters E F G H is a public Muslim graveyard as specified in
para 2 of the plaint may be decreed.

(b) That in case in the opinion of the Court delivery of

possession is deemed to be the proper remedy, a decree for
delivery of possession of the mosque and graveyard in suit by
removal of the idols and other articles which the Hindus may
have placed in the mosque as objects of their worship be
passed in plaintiff‘s favour, against the defendants.

(bb) That the statutory Receiver be commanded to hand over

the property in dispute described in the Schedule ‗A‘ of the
Plaint by removing the unauthorised structures erected
thereon.‖

[Note: Prayer (bb) was inserted by an amendment to the plaint pursuant to the

order of the High Court dated 25 May 1995].

The suit is based on the averment that in Ayodhya, there is an ancient historic

mosque known commonly as Babri Masjid which was constructed by Babur more

than 433 years ago following his conquest of India and the occupation of its

territories. It has been averred that the mosque was built for the use of the

Muslims in general as a place of worship and for the performance of religious

ceremonies. The main construction of the mosque is depicted by the letters A B

C D on the plan annexed to the plaint. Adjoining the land is a graveyard.

According to the plaintiffs, both the mosque and the graveyard vest in the

Almighty and since the construction of the mosque, it has been used by the

Muslims for offering prayers while the graveyard has been used for burial. It has

been averred that a cash grant was paid from the royal treasury for the upkeep

and maintenance of the mosque, which was continued by the Nawab Wazir of

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Oudh. After the annexation of Oudh, the British Government continued the ‗cash

nankar‘ until 1864 by revenue free grants in the villages of Sholapur and

Bahoranpur in the vicinity of Ayodhya.

600. The plaint alleged that outside the main building of the mosque, Hindu

worship was being conducted at a Chabutra admeasuring 17 x 21 feet on which

there was a small wooden structure in the form of a tent. The plaint contains a

recital of the Suit of 1885 instituted by Mahant Raghubar Das for permission to

build a temple on the Chabutra together with a reference to the dismissal of the

suit. According to the plaintiffs, Mahant Raghubar Das sued on behalf of himself,

the Janmasthan and the whole body of persons interested in it. The Mutawalli of

Babri Masjid was made a defendant.

According to the plaintiffs, the decision in the suit operates as res judicata on the

ground that the matter directly and substantially in issue was:

(i) The existence of Babri Masjid; and

(ii) The rights of Hindus to construct on the land adjoining the mosque.

The plaint contains a reference to the riots of 1934 and to the restoration of the

portions of the mosque which were damaged, at the cost of the government.

According to the plaintiffs, following the enactment of the UP Muslim Waqfs Act

1936, an enquiry was conducted by the Commissioner of Waqfs and the report of

the Commissioner was published in the official gazette. The plaintiffs claimed that

Muslims have been in peaceful possession of the mosque which was used for

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prayer until 23 December 1949 when a crowd of Hindus is alleged to have

entered the mosque and desecrated it by placing idols inside. According to the

plaintiffs, assuming without admitting that there existed a Hindu temple as alleged

by the defendants on the site of which the mosque was built 433 years ago by

Emperor Babur, the Muslims by virtue of their long, exclusive and continuous

possession commencing from the construction of the mosque and ensuing until

its desecration, perfected their title by adverse possession. The plaint then

proceeds to make a reference to the proceedings under Section 145 and to the

institution of civil suits before the Civil Judge at Faizabad. As a result of the order

of injunction in Suit 2 of 1950, Hindus have been permitted to perform puja of the

idols placed within the mosque but Muslims have been prevented from entering.

It has been averred that the suit has been instituted on behalf of the entire

Muslim community together with an application under Order I Rule 8 of the CPC.

601. It has been stated that the receiver who is in possession holds the property

for the real owner and the plaintiffs would be entitled to possession if the suit

succeeds. Alternatively, a plea for possession has also been made. The plaint

was amended following the demolition of Babri Masjid to place subsequent facts

and events on the record. According to the plaintiffs, a mosque does not require

any particular structure and even after the demolition of the mosque, the land on

which it stood continues to remain a mosque in which Muslims are entitled to

offer prayers. The plaint adverts to the acquisition of the land under the

Acquisition of Certain Areas of Ayodhya Act 1993.

According to the plaintiffs, the cause of action for the suit arose on 23 December
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1949 when the Hindus are alleged to have wrongfully entered the mosque and

desecrated it by placing idols inside the mosque. The injuries are claimed to be

continuing in nature. As against the state, the cause of action is alleged to have

arisen on 29 December 1949 when the property was attached by the City

Magistrate who handed over possession to the receiver. The respondent

assumed charge on 5 January 1950.

The reliefs which have been claimed in the suit are based on the above

averments. Essentially, the case of the plaintiffs proceeds on the plea that:

(i) The mosque was constructed by Babur 433 years prior to the suit as a

place of public worship and has been continuously used by Muslims for

offering prayers; and

(ii) Even assuming that there was an underlying temple which was

demolished to give way for the construction of the mosque, the Muslims

have perfected their title by adverse possession. On this foundation, the

plaintiffs claim a declaration of title and, in the event that such a prayer is

required, a decree for possession.

602. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf

Board and nine Muslims resdients of Ayodhya. Defendant no 1 in Suit 4 is Gopal

Singh Visharad; defendant no 2 is Ram Chander Dass Param Hans; defendant

no 3 is Nirmohi Akhara; defendant no 4 is Mahant Raghunath Das; defendant no

5 is the State of U.P.; defendant no 6 is the Collector, Faizabad; defendant no 7 is

the City Magistrate, Faizabad; defendant no 8 is the Superintendent of Police of

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Faizabad; defendant no 9 is Priyadutt Ram; defendant no 10 is the President,

Akhil Bharat Hindu Mahasabha; defendant no 13 is Dharam Das; defendant no

17 is Ramesh Chandra Tripathi; and defendant no 20 is Madan Mohan Gupta.

603. Now with these principles in mind, it is necessary to carefully scrutinise the

pleadings in Suit 4 in regard to the assertion of possession. The plea in

paragraph 2 of the plaint is that the mosque has since the time of its construction

by Babur been used by the Muslims for offering prayers and that the Muslims

have been in the peaceful possession of the mosque in which prayers were

recited till 23 December 1949. The alternate plea is that assuming (without

admitting) that there existed a Hindu temple as alleged by the Hindus on the site

on which the mosque was built, the Muslims by virtue of their long, exclusive and

continuous possession beginning from the time when the mosque was built and

continuing until it was desecrated (by the placing of idols) perfected their title by

adverse possession and ―the right, title or interest of the temple and of the

Hindu public if any, extinguished‖. The claim of possession is hence based on the

plea that there has been a continuous use of the mosque for offering prayers

since its inception and that this use has been long, continuous and exclusive.

O.2 Written statements

Gopal Singh Visharad

604. In the written statement filed by Gopal Singh Visharad, the first defendant

(who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in

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possession of the mosque, it ceased in 1934. The Hindus claim to be in

possession after 1934 and their possession is stated to have ripened into

adverse possession. According to the written statement, no prayers were offered

in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said

to represent the entire Hindu community. Hindu puja is stated to be continuing

inside the structure, which is described as a temple since 1934 and admittedly

since January 1950, following the order of the City Magistrate. In an additional

written statement, a plea has been taken that the UP Muslim Waqfs Act 1936 is

ultra vires. It has been averred that any determination under the Act cannot

operate to decide a question of title against non-Muslims. In a subsequent written

statement, it has been stated that Hindus have worshipped the site of the

Janmabhumi since time immemorial; the Muslims were never in possession of

the Janmabhumi temple and, if they were in possession, it ceased in 1934. The

suit is alleged to be barred by limitation.

As regards the Suit of 1885, it has been submitted that the plaintiff was not suing

in a representative capacity and was only pursuing his personal interest;

Nirmohi Akhara

605. The written statement of Nirmohi Akhara denies the existence of a

mosque. Nirmohi Akhara states that it was unaware of any suit filed by Mahant

Raghubar Das. According to it, a mosque never existed at the site and hence

there was no occasion for the Muslim community to offer prayers till 23

December 1949. It is urged that the property described as Babri mosque is and

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has always been a temple of Janmabhumi with idols of Hindu Gods installed

within. According to the written statement, the temple on Ramchabutra had been

judicially recognised in the Suit of 1885. It was urged that the Janmabhumi

temple was always in the possession of Nirmohi Akhara and none else but the

Hindus were allowed to enter and offer worship. The offerings are stated to have

been received by the representative of Nirmohi Akhara. After the attachment, only

the pujaris of Nirmohi Akhara are claimed to have been offering puja to the idols

in the temple. The written statement contains a denial of Muslim worship in the

structure at least since 1934 and it is urged that Suit 4 is barred by limitation. In

the additional written statement, Nirmohi Akhara has denied that the findings in

the Suit of 1885 operate as res judicata. There is a denial of the allegation that

the Muslims have perfected their title by adverse possession.

State of Uttar Pradesh

606. The State of Uttar Pradesh filed its written statement to the effect that the

government is not interested in the property in dispute and does not propose to

contest the suit.

Akhil Bhartiya Hindu Mahasabha

607. In the written statement filed on behalf of the tenth defendant, Akhil

Bhartiya Hindu Mahasabha, it has been averred that upon India regaining

independence, there is a revival of the original Hindu law as a result of which the

plaintiffs cannot claim any legal or constitutional right. In an additional written

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statement, the tenth defendant denies the incident of 22 December 1949 and

claims that the idols were in existence at the place in question from time

immemorial. According to the written statement, the site is the birth-place of Lord

Ram and no mosque could have been constructed at the birth-place.

Abhiram Das and Dharam Das

608. The written statement by Abhiram Das and by Dharam Das, who claims to

be his chela, questions the validity of the construction of a mosque at the site of

Ram Janmabhumi. According to the written statement, the site is landlocked and

surrounded by places of Hindu worship and hence such a building cannot be a

valid mosque in Muslim law. The written statement contains a denial of a valid

waqf on the ground that a waqf cannot be based on adverse possession.

According to the written statement, at Ram Janmabhumi there was an ancient

temple tracing back to the rule of Vikramaditya which was demolished by Mir

Baqi. It has been averred that Ram Janmabhumi is indestructible as the deity is

divine and immortal. In spite of the construction of the mosque, it has been

submitted, the area has continued to be in the possession of the deities and no

one could enter the three-domed structure except after passing through Hindu

places of worship. The written statements filed by the other Hindu defendants

broadly follow similar lines. Replications were filed to the written statements of

the Hindu parties.

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O.3 Issues and findings of the High Court

609. 1 Whether the building in question described as mosque in the sketch

map attached to the plaint was a mosque as claimed by the

plaintiffs. If the answer is in the affirmative-

(a) When was it built and by whom whether by Babar as

alleged by the plaintiffs or by Mir Baqi as alleged by

defendant no 13;

(b) Whether the building had been constructed on the site of

an alleged Hindu temple after demolishing the same as

alleged by defendant no 13; If so, its effect

• Justice S U Khan - The construction of a mosque took place

by or under the orders of Babur. Whether it was actually built

by Mir Baqi or someone else is not material. Muslims offered

regular prayers until 1934, after which until 22 December

1949, only Friday prayers were offered. This is sufficient for

continuous possession and use. No temple was demolished

for the construction of the mosque. Until the mosque was

constructed during the period of Babur, the premises were not

believed to be or treated as the birth-place of Lord Ram.

• Justice Sudhir Agarwal - Answered in favour of the plaintiffs.

1(a): Answered in the negative – plaintiffs have failed to prove

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the construction of the structure by Babur. In the absence of

pleadings and evidence, no certain finding can be returned on

who had constructed the structure but an informed guess is

that it was constructed during the regime of Aurangzeb (1659-

1707 A.D.).

1(b) – Answered in the affirmative.

• Justice D V Sharma - Issue Nos 1 and 1(a) answered

against the plaintiffs.

Issue 1(b) answered in favour of the defendants on the basis

of the ASI Report.

1(b)(a) Whether the building existed at Nazul plot no.583 of the Khasra

of the year 1931 of Mohalla Kot Ram Chandra known as Ram

Kot, City Ayodhya (Nazul estate?) Ayodhya. If so its effect

thereon.

• Justice S U Khan - Following the demolition of the structure

on 6 December 1992, it is no longer necessary to decide the

question of identification of the property.

• Justice Sudhir Agarwal – Though the building is shown to

be situated on Nazul plot number 583 of the Khasra of 1931

of Mohalla Kot Ram Chandra, it will not impact upon the claim

of the two communities since the State of Uttar Pradesh has

not staked any claim, having filed a written statement of no

contest.

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• Justice D V Sharma - The property existed on Nazul plot

number 583 of Khasra of 1931 belonging to the government.

1-B(b) Whether the building stood dedicated to almighty God as

alleged by the plaintiffs.

• Justice S U Khan - The mosque was a valid mosque.

• Justice Sudhir Agarwal - Not answered, being irrelevant.

• Justice D V Sharma - Answered against the plaintiffs.

1-B(c) Whether the building had been used by the members of the Muslim

community for offering prayers from time immemorial.

If so, its effect.

• Justice S U Khan - Until 1934, the mosque which was

constructed by or under the orders of Babur was being used

for regular prayers by Muslims. From 1934 until 22 December

1949, only Friday prayers were conducted but this is sufficient

to indicate continuance of possession and use.

• Justice Sudhir Agarwal - Since both the parties were using

the structure in accordance with their respective forms of

worship, belief and faith for 80 years prior to the institution of

the first suit, the inner courtyard and the building were not

restricted for use by one community.

• Justice D V Sharma – Answered against the plaintiffs.

2 Whether the plaintiffs were in possession of the property in

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suit upto 1949 and were dispossessed from the same in 1949

as alleged in the plaint.

• Justice S U Khan - Title follows possession. Hence, both

parties held to be joint title-holders in possession of the

premises in dispute.

• Justice Sudhir Agarwal and Justice D V Sharma -

Answered against the plaintiffs

3 Is the suit within time.

• Justice S U Khan - The suit is not barred by limitation.

• Justice Sudhir Agarwal and Justice D V Dharma - The suit

is barred by limitation.

4 Whether the Hindus in general and the devotees of 'Bhagwan

Sri Ram in particular have perfected right of prayers at the site

by adverse and continuous possession as of right for more

than the statutory period of time by way of prescription as

alleged by the defendants.

• Justice S U Khan - Both parties held to be joint title-holders

in possession since prior to 1885 and hence it is not

necessary to decide the question of adverse possession.

• Justice Sudhir Agarwal - Since 1856-57, the outer courtyard

has not been used or possessed by Muslims but the inner

courtyard has been used by both parties.

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• Justice D V Sharma - Decided against the plaintiffs.

5 (a) Are the defendants estopped from challenging the

character of

property in suit as a waqf under the administration of plaintiff

No.1 in view of the provision of Section 5(3) of U.P. Act 13 of

1936. (This issue has already been decided in the negative vide

order dated 21.4.1966 by the learned Civil Judge)  Justice S U

Khan - In the absence of any specific finding, he has stated that he is in

agreement with Justice Sudhir Agarwal.

 Justice Sudhir Agarwal and Justice D V Sharma - The issue has

been answered against the plaintiffs by the order of the Civil Judge

dated 21 April 1966.

5 (b) Has the said Act no application to the right of Hindus in

general and defendants in particular, to the right of their

worship.

• Justice S U Khan - In the absence of any specific finding, he has

stated that he is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal and Justice D V Sharma - Decided in

favour of the defendants and the Hindu parties, against the plaintiffs.

5 (c) Were the proceedings under the said Act conclusive. (This

issue has already been decided in the negative vide order dated

21 April 1996 by the learned Civil Judge).

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• Justice S U Khan - In the absence of any specific finding, he has

stated that he is in agreement with Justice Agarwal.

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
Justice Sudhir Agarwal - Decided by the order of the civil judge

dated 21 April 1966 that the bar of Section 5(3) under UP Act XIII of

1936 does not hit the defence of the defendants of the leading case.

• Justice D V Sharma - Decided in the negative by the order dated

21 April 1966.

5 (d) Are the said provisions of Act XIII of 1936 ultra-vires as alleged

in written statement. (This issue was not pressed by counsel

for the defendants, hence not answered by the learned Civil

Judge, vide his order dated 21 April 1966).

• Justice S U Khan - In the absence of any specific finding, he has

stated that he is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal and Justice D V Sharma - Issue 5(d) has

not been pressed.

5 (e) Whether in view of the findings recorded by the learned Civil Judge

on 21 April 1996 on issue no.17 to the effect that, "No valid

notification under section 5(1) of the Muslim Waqf Act (No. XIII

of 1936) was ever made in respect of the property in dispute",

the plaintiff Sunni Central Board of Waqf has no right to

maintain the present suit.

• Justice S U Khan - In the absence of any specific finding, he has

stated that he is in agreement with Justice Agarwal.

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
• Justice Sudhir Agarwal - Decided in favour of the plaintiffs subject

to issue 6 in Suit 3 which has also been decided in favour of the

defendants.

Justice D V Sharma - Decided against the plaintiffs.

5 (f) Whether in view of the aforesaid finding, the suit is

barred on

account of lack of jurisdiction and limitation as it was filed after

commencement of the U P Muslim Waqf Act, 1960.

• Justice S U Khan - In the absence of any specific finding, he has

stated that he is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal - Answered in the negative in favour of the

plaintiffs and against the defendants.

6 Whether the present suit is a representative suit, plaintiffs

representing the interest of the Muslims and defendants

representing the interest of the Hindus.

• Justice S U Khan - In the absence of any specific finding, he has

stated that he is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal - Answered in the affirmative.

• Justice D V Sharma - Decided in favour of the plaintiffs.

7 (a) Whether Mahant Reghubar Das, plaintiff of Suit No.61/280

of 1885, had sued on behalf of Janmasthan and whole body of

persons interested in it.

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
• Justice S U Khan - The decision in Suit of 1885 does not attract the

principles of Section 11 of CPC, since virtually nothing was decided

in the suit.

Justice Sudhir Agarwal - Answered in the negative. The Suit of

1885 was not filed by Mahant Raghubar Das on behalf of the

Janmasthan and the whole body of persons interested in it.

• Justice D V Sharma - Decided against the plaintiffs.

7 (b) Whether Mohammad Asghar was the Mutawalli of alleged Babri

Masjid and did he contest the suit for and on behalf of any such

mosque.

• Justice Sudhir Agarwal - Decided in favour of the plaintiffs.

• Justice D V Sharma - Decided against the plaintiffs.

7 (c) Whether in view of the judgment in the said suit, the members

of the Hindu community, including the contesting defendants,

are estopped from denying the title of the Muslim community,

including the plaintiffs of the present suit, to the property in

dispute. If so, its effect.

• Justice Sudhir Agarwal - Decided in the negative.

• Justice D V Sharma - Decided against the plaintiffs.

7 (d) Whether in the aforesaid suit, title of the Muslims to

the

property in dispute or any portion thereof was admitted by

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
plaintiff of that suit. If so, its effect.

• Justice Sudhir Agarwal - Answered in the negative. There was no

admission by the plaintiff in the Suit of 1885 about the title of the

Muslims to the property in dispute.

• Justice D V Sharma - Decided against the plaintiffs.

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8 Does the judgment in Suit No.61/280 of 1885, Mahant Raghubar Das

Vs. Secretary of State and others, operate as res judicata against the

defendants in suit.

• Justice Sudhir Agarwal - Answered in the negative.

• Justice D V Sharma - Decided against the plaintiffs; the judgment will not

operate as res judicata.

10 Whether the plaintiffs have perfected their rights by adverse

possession as alleged in the plaint.

• Justice S U Khan - Both parties are in joint possession before 1885.

Hence, there is no need to determine the issue of adverse possession.

• Justice Sudhir Agarwal and Justice D V Sharma - Answered

against the plaintiffs and Muslims.

11 Is the property in suit the site of Janam Bhumi of Sri Ram

Chandraji.

• Justice S U Khan - No temple was demolished for constructing the

mosque. Until the mosque was constructed during the period of Babur,

the premises in dispute were not treated or believed to be the birth-place

of Lord Ram.

• Justice Sudhir Agarwal - The place of birth believed in and worshipped

by the Hindus is the area covered under the central dome of the disputed

structure in the inner courtyard

• Justice D V Sharma - Decided against the plaintiffs.

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12 Whether idols and objects of worship were placed inside the

building in the night intervening 22nd and 23rd December 1949

as alleged in paragraph 11 of the plaint or they have been in

existence there since before. In either case the effect.

• Justice S U Khan - Idols were kept on the pulpit inside the constructed

portion of the mosque for the first time during the night between 22/23

December 1949.

• Justice Sudhir Agarwal - The plaintiffs have failed to prove that the idols

and objects were placed inside the building during the night intervening

22/23 December 1949. The idols and objects existed even prior to 22

December 1949 in the outer courtyard. The issue is answered in the

negative.

• Justice D V Sharma - The plaintiffs have failed to prove that the idols and

objects of worship were installed in the building in the night intervening

22/23 December 1949.

13 Whether the Hindus in general and defendants in particular had

the right to worship the ‗Charans‘ and 'Sita Rasoi' and idols and

objects of worship, if any, existing in or upon the property in

suit.

• Justice S U Khan - Title follows possession and both parties were joint

title-holders in possession of the premises in dispute.

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• Justice Sudhir Agarwal - Hindus in general had been entering the

premises within the inner courtyard as a matter of right for several

centuries, hence the issue is answered in the affirmative.

• Justice DV Sharma - Decided against the plaintiffs.

14 Have the Hindus been worshipping the place in dispute as Sri Ram Janam

Bhumi or Janam Asthan and visiting it as a sacred place of pilgrimage as

of right since time immemorial. If so, its effect.

• Justice S U Khan - No temple was demolished for constructing the

mosque. Until the construction of the mosque during the period of Babur,

the premises were neither treated nor believed to be the birth-place of

Lord Ram.

• Justice Sudhir Agarwal - Answered in the affirmative.

• Justice D V Sharma - Decided against the plaintiffs.

15 Whether the Muslims been in possession of the property in

suit from 1528 A.D. continuously, openly and to the knowledge of

the defendants and Hindus in general. If so, Its effect.

• Justice S U Khan -There is no need to decide the question of adverse

possession since both parties are joint title-holders in possession.

• Justice Sudhir Agarwal and Justice DV Sharma - Answered

against the plaintiffs and the Muslims.

16 To what relief, if any are the plaintiffs or any of them, entitled.

• Justice S U Khan - In the absence of any specific finding, he has stated

that he is in agreement with Justice Agarwal.

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• Justice Sudhir Agarwal - The suit is liable to be dismissed as being

barred by limitation.

• Justice D V Sharma - The plaintiffs are not entitled to any relief and the

suit is dismissed.

17 Whether a valid notification under section 5 (1) of the U.P. Muslim Waqf Act

No. XIII of 1936 relating to the property in suit was ever done. If so, its

effect. (This issue has already been decided by the learned Civil Judge by

order dated 21.04.1966)

• Justice S U Khan - In the absence of any specific finding, he has stated

that he is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal and Justice D V Sharma - Decided by the

order dated 21 April 1966 of the Civil Judge.

18 What is the effect of the judgment of the Supreme Court in

Gulam Abbas and others v State of UP and others, (A.I.R. 1981

Supreme Court 2198) on the finding of the learned Civil Judge

recorded on 21st April, 1966 on issue no 17.

• Justice S U Khan - In the absence of any specific finding, he has stated

that he is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal - The decision of the Supreme Court does not

affect the findings on issue 17.

• Justice DV Sharma - Decided against the plaintiffs.

19(a) Whether even after construction of the building in suit, deities

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of Bhagwan Sri Ram Virajman and the Asthan Sri Ram Janam

Bhumi continued to exist on the property in suit as alleged on

behalf of defendant no 13 and the said places continued to be

visited by devotees for purpose of worship. If so whether the

property in dispute continued to vest in the said deities.

• Justice S U Khan - No temple was demolished for constructing the

mosque. Until the mosque was constructed during the period of Babur,

the premises were neither believed nor treated to be the birth-place of

Lord Ram.

• Justice Sudhir Agarwal - The premises which are believed to the place

of birth of Lord Ram continued to vest in the deity. Hindu religious

structures in the outer courtyard cannot be held to be the property of the

plaintiffs.

• Justice D V Sharma - Decided against the plaintiffs.

19(b) Whether the building was land-locked and cannot be reached

except by passing through places of Hindu worship. If so, its

effect.

• Justice S U Khan - In the absence of any specific finding, he has stated

that he is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal - Answered in the affirmative to the extent that

the building was land-locked and could not be reached except by passing

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through places of Hindu worship. However, this by itself is of no

consequence.

• Justice D V Sharma - Decided against the plaintiffs.

19(c) Whether any portion of the property in suit was used as a place

or worship by the Hindus immediately prior to the construction

of the building in question. If the finding is in the affirmative,

whether no mosque could come into existence in view of the

Islamic tenets at the place in dispute.

• Justice S U Khan - No temple was demolished for constructing the

mosque. Until the mosque was constructed during the period of Babur,

the premises were neither believed nor treated to be the birth-place of

Lord Ram.

• Justice Sudhir Agarwal - Hindus were worshiping at the place in dispute

before the construction of the disputed structure. However, insofar as the

second part is concerned, it has no relevance, being hypothetical.

• Justice D V Sharma - The property in suit is the site of Janmabhumi of

Lord Ram and the defendants had a right to worship. The Hindus have

been doing that since time immemorial.

19(d) Whether the building in question could not be a mosque under

the Islamic law in view of the admitted position that it did not have

minarets.

• Justice S U Khan - It cannot be said that the mosque was not a valid

mosque.

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• Justice Sudhir Agarwal - Answered in favour of the plaintiffs.

• Justice D V Sharma - Decided against the plaintiffs.

19(e) Whether the building in question could not legally be a mosque

as on plaintiffs own showing it was surrounded by a grave-yard on

three sides?

• Justice S U Khan - It cannot be said that the mosque was not a valid

mosque.

• Justice Sudhir Agarwal - Answered in favour of the plaintiffs.

• Justice D V Sharma - Decided against the plaintiffs.

19(f) Whether the pillars inside and outside the building in question

contain images of Hindu Gods and Goddesses. If the finding is

in affirmative, whether on that account the building in question

cannot have the character of mosque under the tenets of Islam.

• Justice S U Khan - No temple was demolished for constructing the

mosque. Until the construction of the mosque, the premises were neither

treated nor believed to be the birth-place of Lord Ram.

• Justice Sudhir Agarwal - The first part is answered in the affirmative.

The second part is redundant and left unanswered. In the ultimate result,

the issue is answered in favour of the plaintiffs.

• Justice D V Sharma - Decided against the plaintiffs.

20(a) Whether the waqf in question cannot be a Sunni Waqf as the

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building was not allegedly constructed by a Sunni

Mohammedan but was allegedly constructed by Mir Baqi who

was allegedly a Shia Muslim and the alleged Mutawallis were

allegedly Shia Mohammedans. If so, its effect.

• Justice S U Khan -It cannot be said that the mosque was not a valid

mosque.

• Justice Sudhir Agarwal - Irrelevant and not answered.

• Justice D V Sharma - Decided against the plaintiffs.

20(b) Whether there was a Mutawalli of the alleged Waqf and whether

the alleged Mutawalli, not having joined in the suit, the suit is not

maintainable so far as it relates to relief for possession.

• Justice S U Khan – In the absence of any specific finding, he has stated

that he is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal - At the time of the attachment of the building,

there was a mutawalli and in the absence of whom relief of possession

cannot be allowed to the plaintiffs in their capacity as worshippers.

• Justice D V Sharma - The suit is held not to be maintainable.

21 Whether the suit is bad for non-joinder of alleged deities.  Justice S U

Khan - Though, the deity is not a defendant, the suit cannot be dismissed on this

ground as the deity is sufficiently represented.

• Justice Sudhir Agarwal - Answered in favour of the plaintiffs.

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• Justice D V Sharma - Decided against the plaintiffs.

22 Whether the suit is liable to be dismissed with special costs.  Justice S U

Khan – In the absence of any specific finding, he has stated that he is in

agreement with Justice Agarwal.

• Justice Sudhir Agarwal - No special costs need to be awarded.

• Justice D V Sharma - The plaintiffs are not entitled to any relief: the suit is

dismissed with easy costs.

23 Is the Waqf Board an instrumentality of State. If so, whether the

Board can file a suit against the State itself.

• Justice S U Khan - In the absence of any specific finding, he has stated that he

is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal - Neither is the Waqf Board an

instrumentality of the State nor is there any bar to the filing of the suit by

the Waqf Board against the State.

• Justice D V Sharma - The suit is not maintainable.

24 Is the Waqf Board ‗State‘ under Article 12 of the Constitution? If

so, can the said Waqf Board being state file any suit in a

representative capacity sponsoring the case of particular

community and against the interest of another community.

• Justice S U Khan – In the absence of any specific finding, he has stated that he

is in agreement with Justice Sudhir Agarwal.

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• Justice Sudhir Agarwal - Neither is the Sunni Central Waqf Board an

instrumentality of the State nor is there any bar to the filing of a suit by the Waqf

Board against the State.

• Justice D V Sharma - The suit is not maintainable.

25 Whether on the demolition of the dispute structure as claimed

by the plaintiff, it can still be called a mosque and if not

whether the claim of the plaintiffs is liable to be dismissed as

no longer maintainable.

• Justice S U Khan - In the absence of any specific finding, he has stated that he

is in agreement with Justice Agarwal.

• Justice Sudhir Agarwal - Suit 4 cannot be held to be not

maintainable as a result of the demolition of the disputed structure.

• Justice D V Sharma - Decided against the plaintiffs.

26 Whether Muslims can use the open site as mosque to offer

prayer when the structure which stood thereon has been demolished.

• Justice S U Khan - In the absence of any specific finding, he has stated that he

is in agreement with Justice Sudhir Agarwal.

• Justice Sudhir Agarwal - Suit 4 cannot be held not to be

maintainable as a result of the demolition of the disputed structure.

• Justice D V Sharma - Decided against the plaintiffs.

27 Whether the outer courtyard contained Ramchabutra, Bhandar

and Sita Rasoi. If so whether they were also demolished on 6

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December 1992 along with the main temple.

• Justice S U Khan - Ramchabutra came into existence before the visit of

Tieffenthaler (1766-1771 A.D.) but after the construction of the mosque (1528

A.D.).

• Justice Sudhir Agarwal - All parties admitted that the three structures were

demolished on 6 December 1992 when the disputed structure was demolished.

Hence, answered in the affirmative.

• Justice D V Sharma - Decided in the affirmative.

28 Whether the defendant no 3 has ever been in possession of the

disputed site and the plaintiffs were never in its possession.

• Justice S U Khan - Both parties are joint title-holders in possession of the

premises in dispute.

• Justice Sudhir Agarwal - The plaintiffs have failed to prove their possession of

the outer and inner courtyards including the disputed building.

• Justice D V Sharma - Decided against the plaintiffs.

The view of the High Court

Two of the three judges of the High Court (Justice SU Khan and Justice Sudhir

Agarwal) directed a three-way division of the disputed premises:

―1/3rd each to the Muslim parties, plaintiffs of suit 5 and

Nirmohi Akhara.‖

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The basis on which the High Court directed this three-fold division was its finding of

joint possession. Justice D V Sharma decreed the entire property to the

plaintiffs in Suit 5.

The common thread that runs through the judgment of Justice S U Khan is that

Muslims and Hindus were in joint possession and since under Section 110 of the

Evidence Act title follows possession, both were joint title-holders of the premises

in dispute.

610. The basis of Justice Sudhir Agarwal‘s judgment can be delineated thus:

(i) Muslims did not have possession of the outer courtyard at least from

185657 when the dividing railing was raised by the British. Muslims have

had at best, only a right of passage through the outer courtyard;

(ii) The possession of the Hindus over the outer courtyard was open and to

the knowledge of the Muslims. This is evidenced by the documents of 1858

which indicate that the Mutawalli of the mosque had made several

complaints, in spite of which the structures continued in the premises as

did the entry and worship of the Hindus in the outer courtyard;

(iii) There is no evidence of the Muslims being in possession of the property in

dispute. While it cannot be held that the Muslims did not visit the inner

courtyard at all or that no namaz was offered till 1949, that by itself will not

amount to possession in law. There was a beneficial enjoyment by the

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Muslims with the Hindus and the Muslims thus visited the inner courtyard

for worshipping in their own way;

(iv) Though there is a claim of the plaintiffs that since regular namaz was

offered in the inner courtyard, the receiver would have recovered requisite

material relatable to its use, no such material was found, leading to the

inference that none existed. This weakens the claim of the Muslims to

exclusive possession in the form of continuous worship;

(v) The Muslims did not abandon the property in dispute. They continued to

exercise a claim over it, getting it recognised by the British government in

the form of a grant for upkeep and maintenance. The maintenance of the

building to the extent of the disputed structure and the partition wall is

evident as is the entry of Muslims into the inner courtyard for namaz. While

both the Hindus and Muslims visited the disputed property as worshippers,

the only distinction was that Hindus visited the entire property while

Muslims were confined to the inner courtyard for the purposes of offering

prayers;

(vi) While Muslims have failed to prove that the property in Suit 4 was in their

exclusive possession up to 1949, both the communities were in

possession of the inner courtyard;

(vii) The outer courtyard was not in the possession of the Muslims as of 1949

and even prior thereto. Insofar as the inner courtyard is concerned, the

Muslims have discontinued their possession from 23 December 1949.

Prior thereto, the possession of the inner courtyard was enjoyed by both Hindus

and Muslims; and

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(viii) Hindu religious structures existed in the outer courtyard since sometime

after 1856-7 and were being managed and administered by the priests of

Nirmohi Akhara. Therefore, to the extent of the outer courtyard, the

disputed site can be said to have been in possession of the Nirmohi

Akhara while the Muslims ceased to have possession over it. The inner

courtyard was not in the exclusive possession of either of the parties and it

was visited by members of both the communities without any obstruction.

In allowing the entirety of the claim of the plaintiffs in Suit 5, Justice D V Sharma held:

(i) A mosque loses its sacred character upon being adversely possessed by a

non-Muslim. Muslims were not in possession over the suit property and

there is no reliable evidence to indicate that prayers were offered by them

from time immemorial; and

(ii) Muslims have not established exclusive and continuous possession over

the suit property from 1528 A.D. or that they offered prayers in the disputed

structure since time immemorial. On the other hand, the Hindus have

established exclusive possession over the inner courtyard and that they

were visiting it for offering prayers.

Maintainability of Suit 4

611. During the course of hearing, Mr Parasaran, learned Senior Counsel

objected to the maintainability of Suit 4 on the ground that the suit could have

only been instituted at the behest of a Mutawalli. It was urged that the Sunni

Central Waqf Board had no locus to institute the proceeding. There is no merit in
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the submission. Section 19(2) of the UP Muslim Waqf Act 1960 specifically

empowers the board to adopt measures for the recovery of property and to

institute and defend suits relating to waqfs. Under Section 3(2), the Board is

defined to mean the Sunni Central Waqf Board, or the Shia Central Waqf Board

constituted under the Act. Clearly, therefore in terms of the statutory power, the

Sunni Central Waqf Board has authority to institute legal proceedings.

O.4 Limitation in Suit 4

Pleadings

612. In the plaint in Suit 4, the cause of action for the institution of the

proceedings is founded on the events which took place on 23 December 1949,

during the course of which idols were placed inside the mosque by a crowd of

Hindus. The intent of doing so was to destroy, damage and defile the mosque.

Moreover, according to the plaintiffs, this act of entry into the mosque and the

placement of idols amounted to a desecration of the mosque. This clearly

emerges from the averments in paragraph 11 of the plaint:

―11. That the Muslims have been in peaceful possession of

the aforesaid mosque and used to recite prayer in it, till
23.12.1949 when a large crowd of Hindus, with the
mischievous intention of destroying, damaging or defiling the
said mosque and thereby insulting the Muslim religion and the
religious feelings of the Muslims, entered the mosque and
descecrated the mosque by placing idols inside the mosque.
The conduct of Hindus amounted to an offence punishable
under Sections 147, 295 and 448 of the Indian Penal Code.‖

Linked to the above averment is the statement in paragraph 23 which reads thus:

―23. That cause of action for the suit against the Hindu
public arose on 23.12.1949 at Ajodhiya District Faizabad

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within the jurisdiction of this Hon‘ble Court when the Hindus

unlawfully and illegally entered the mosque and desecrated
the mosque by placing idols in the mosque thus causing
obstruction and interference with the rights of the Muslims in
general, of saying prayers and performing other religious
ceremonies in the mosque. The Hindus are also causing
obstructions to the Muslims gang in the graveyard, (Ganj-
Shahidan) and reciting Fatiha to the dead persons buried
therein. The injuries so caused are continuing injuries are the
cause of action arising therefrom is renewed de-die-indiem
and as against defendants 5 to 9 the cause of action arose to
the plaintiffs on 29.12.1949 the date on which the defendant
No. 7 the City Magistrate Faizabad-cum-Ajodhiaya attached
the mosque in suit and handed over possession of the same
to Sri Priya Dutt Ram defendant no. 9 as the receiver, who
assumed charge of the same on January 5, 1950.
The State government and its officials defendants 6 to 8 failed
in their duty to prosecute the offenders and safeguard the
interests of the Muslims.‖

In the suit as it was originally filed, a declaration was sought to the effect that the

property identified by the letters A B C D in the map annexed to the plaint is a

public mosque known as Babri Masjid and the land adjoining it depicted by letters

E F G H is a public Muslim graveyard. Prayer (b) seeks a decree for the delivery

of possession of the mosque and graveyard, by removing of the idols and other

articles of worship placed by the Hindus, ―in case in the opinion of the Court

delivery of possession is deemed to be the proper remedy‖. Prayer (bb) is for a

command to the statutory receiver to handover the property described in

Schedule ‗A‘ by removing the unauthorised structures. Prayer (bb) was brought in

by way of an amendment on 25 May 1995.

Written statements

613. The plea of limitation was specifically raised in several written statements,

among them in paragraphs 27 and 28 of the written statements of the first

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and second defendants and paragraph 23 of the additional written

statement. The plea of limitation was also raised in paragraph 35 of the

written statement, filed by Nirmohi Akhara and Mahant Raghunath Das,

defendant nos 3 and 4; in paragraph 29 of the written statement of the

Akhil Bharat Hindu Mahasabha, defendant no 10; and in the written

statements of several other Hindu parties.

The tenth defendant filed a written statement on 15 February 1990 and denied

paragraph 23 of the plaint. In the additional pleas raised in paragraphs 29 and 79,

a specific plea was raised that the suit is barred by limitation. Paragraph 79 of the

written statement reads thus:

―…79. That the suit as framed is a suit for declaration only

and the relief for delivery of possession is in the words that
―In case in the opinion of the court …‖ which means that the
plaintiffs are not seeking relief of possession and leave it to
the court to grant possession suo motu. The reason is
obvious that the suit was barred by limitation and so specific
prayer has not been made.‖

Paragraph 39 of the written statement was inserted pursuant to the order of the

court dated 23 November 1992. A replication was filed to the amended written

statement of the tenth defendant but there was no specific traverse of paragraph

79 of the written statement.

614. The suit was presented and filed on 18 December 1961.

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615. The first plaintiff of Suit 4 was impleaded as the ninth defendant to Suit 3

instituted by Nirmohi Akhara in pursuance of the order of the court dated

23

August 1989. A statement was made on behalf of the first plaintiff through counsel

that the written statements which were already filed on behalf of defendant nos 1

to 5 in Suit 5 and defendant nos 6 to 8 in Suit 3 were being adopted. Sunni

Central Waqf Board was also impleaded as defendant no 10 in Suit 1 pursuant to

the order of the court dated 7 January 1987. In paragraph 22 of the written

statement filed by defendant nos 1 to 5 in Suit 1, it was specifically stated that

namaz had been offered until 16 December 1949. Similarly, in paragraph 26 of

the written statement filed on behalf of defendant nos 6 to 8 in Suit 3 it was also

stated that namaz had been continuously offered till 16 December 1949. Thus, for

the purpose of the issue of limitation, it is necessary to proceed on the basis that

the last namaz was offered on 16 December 1949.

Before the High Court, it was urged by learned Counsel appearing on behalf of defendant no

20 that:

(i) In a suit for declaration, Article 120 of the Limitation Act 1908 is applicable

and even if the cause of action as set out in paragraph 23 is taken as

correct, the suit which was instituted after the expiry of six years is barred

by limitation; and

(ii) Even if Article 120 is held to be inapplicable and Articles 142 and 144 are

held to apply, the cause of action arose on 16 December 1949 and was not

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a continuing wrong. Hence, the suit which was filed on 18 December 1961

after the expiry of twelve years is barred by limitation, albeit by 2 days.

Findings of the High Court

616. Dealing with the provisions of Section 145, Justice Sudhir Agarwal held

that the proceeding is not of a judicial nature nor does the Magistrate deal with it

as if it were a suit for immovable property. The proceedings under Section 145

would neither result in extension of limitation nor is any exclusion provided for the

purpose of computing limitation. The appointment of a receiver by the magistrate

merely made the property custodia legis and is not a dispossession within the

meaning of Article 142 of the Limitation Act. The attachment of the property does

not either amount to the dispossession of the owner or a discontinuance of

possession. Adverting to the decision of this Court in Deokuer v Sheoprasad

Singh273, the High Court noted the principle that following an order of attachment

under Section 145, the property is custodia legis; since it is not in the possession

of any private individual, there is no need to seek a relief for the restoration of

possession and a declaration of title would be sufficient. Relief of possession is

not required because no private defendant would be in a position to deliver

possession to the plaintiff and the Magistrate holds possession during the period

of attachment for the party who is ultimately found entitled to it upon adjudication.

273 AIR 1966 SC 359

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617. Having set out the position in law, Justice Sudhir Agarwal held that the

plaint in Suit 4 has no averment that the plaintiffs were dispossessed of the

property which they had already possessed. On the contrary, the plea was that by

the placement of idols inside the mosque, there was an act of desecration which

interfered with the right of the plaintiffs to worship. Moreover, the relief which the

plaintiffs sought was not for the continuation of the right of worship but a

declaration of the status of the structure being a mosque. The learned judge held

that the pleadings did not bring the case under Article 142 since the plea in

paragraph 23 of the plaint was not sufficient to constitute a case of dispossession

or discontinuance of the possession of the plaintiffs over the property in dispute.

The placement of idols inside the mosque, it was held, did not constitute a

dispossession or discontinuance of possession since these concepts

contemplate a total deprivation of the person who was earlier in possession.

Obstruction or interference, it was held does not constitute dispossession or

discontinuance of possession. Justice Sudhir Agarwal noted that if the plaintiffs

had not set up the plea either that they were dispossessed or that their

possession was discontinued in categorical and clear terms, the court could not

provide the deficiency by reading something which was not present in the

pleadings.

618. Justice Sudhir Agarwal held that for the above reasons neither Article 47

nor Article 142 had any application. Dealing with the case under Article 120, the

learned judge noted that the cause of action arose on 23 December 1949 and 29

December 1949. The suit was instituted beyond the period of limitation of six

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years. Hence, whether the last namaz was held on 16 or 23 December 1949,

would be of no consequence. The date on which the last namaz was held would

have been of some significance if Article 120 was not to apply. In the absence of

the application of Articles 142 and 144, it was only Article 120 which would be

attracted, and the suit was held to be barred by limitation.

On whether there was a continuing wrong, Justice Sudhir Agarwal held that if the

suit had been instituted for seeking relief against the obstruction of the right of

worship it would probably have attracted the principle of continuing wrong in

Section 23 of the Limitation Act 1908, particularly in view of the decision of the

Privy Council in Sir Seth Hukum Chand v Maharaj Bahadur Singh274. However,

the suit had not been instituted to seek an enforcement of the right of worship but

for obtaining a declaration of status about the nature of the building in dispute as

a mosque and for delivery of possession in the capacity of possessory

titleholders. Justice Sudhir Agarwal held that a distinction has to be made

between a continuing wrong and continuing effects of a wrong. The facts

pleaded by the plaintiffs indicated that they were ousted from the disputed

premises on 22/23 December 1949 and the wrong was complete once they had

been dispossessed from the property. On this ground, the learned judge held that

the principle of continuing wrong was not attracted. Justice Sudhir Agarwal held

that the ouster of the plaintiffs was complete with the desecration of the mosque

on 23

December 1949 and hence the suit for the purpose of limitation was governed by Article

120. The suit was held to be barred by limitation.

274 (1933) 38 LW 306 (PC)

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Justice D V Sharma held that the suit had been instituted for seeking a

declaration after the attachment by the Magistrate under Section 145. The suit

seeking a declaration was not governed by the principle of a continuing wrong

and in view of the decision of the Privy Council in Raja Rajgan Maharaja Jagatjit

Singh v Raja Partab Bahadur Singh275, it was Article 120 that would apply.

Hence, the learned judge held that neither Article 142 nor Article 144 had any

application. The learned judge also held that though the suit had been instituted

in 1961, it was amended after 33 years (in 1995), to seek possession and to bring

it within the purview of Articles 142 and 144. On these grounds the suit was held

to be barred by limitation.

Justice S U Khan held to the contrary and was of the view that Suit 4 was within limitation.

The learned judge indicated five reasons for holding that Suits 3, 4, and

5 were not barred by limitation which have already been adverted to earlier.

Thus, by a majority (Justice Sudhir Agarwal and Justice D V Sharma), the suit was

held to be barred by limitation; Justice S U Khan holding a contrary view on

this issue.

Submissions of counsel

619. During the course of the arguments before this Court, Mr K Parasaran,

learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5, submitted

that Suit 4 would be governed by Article 120 of the Limitation Act alone and that

275 AIR 1942 PC 47

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neither Articles 142 nor 144 would apply. This submission is sought to be

supported on the basis of the following propositions:

(i) The primary relief which has been sought in Suit 4 (prayer (a)) is a

declaration that the property in dispute is a public mosque and hence, the

suit does not seek a declaration for the enforcement of the right of worship;

(ii) When a suit is filed for a declaration of title to property which is attached

under Section 145, it is not necessary to seek further relief for the delivery

of possession since the defendant is not in possession and is not in a

position to deliver possession. The property under attachment being

custodia legis, the receiver is bound to hand over possession to whoever is

held to be entitled as a result of the civil adjudication;

(iii) A prayer seeking possession was not necessary since the property was

custodia legis since December 1949 and the prayer was introduced only to

circumvent the period of limitation of six years imposed by Article 120;

(iv) Statutes of limitation are statutes of repose;

(v) The period of six years under Article 120 has to be computed from the date

when the right to sue accrues and there is no right to sue unless there is

an accrual of the right asserted in the suit and an infringement or a clear

and unequivocal intention to infringe the right;

(vi) The cause of action as pleaded in paragraph 23 of the plaint is stated to

have arisen on 23 December 1949 when the Hindus unlawfully entered the

mosque and desecrated it by placing idols inside, thus causing an

interference in the offering of prayers by Muslims;

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(vii) The case of the plaintiffs is that the injury which was sustained was of a

continuing nature and not the wrong, which was complete on the date of

the desecration. The bar of limitation is sought to be overcome by alleging

that the cause of action is renewed by virtue of a continuing wrong;

(viii) In the present case, there can be no question of a continuing wrong since

the property was custodia legis. Hence, even assuming (without admitting)

that the placement of the idols under the central dome was a continuing wrong, it

came to an end upon the attachment of the property; and

(ix) The cause of action arose when the idols were placed in the inner

courtyard. This arose even before the proceedings under Section 145 and

hence, the fact that the Magistrate has not passed any final order would

not lead to limitation ceasing to run.

Analysis

620. Both the Limitation Act 1908 and its successor, the Limitation Act of 1963 are

statutes of repose. Extensions or exceptions to limitation are stipulated in the

statute. These provisions include:

(i) Sections 4 – 11 (part II)

(ii) Sections 12-25 (part III) dealing with computation of the period of limitation;

(iii) Section 26 (acquisition of the right of easement in 20 years); and

(iv) Section 27 (modification of 20 years for a reversioner of servient tenement).

Article 47

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621. Article 47 of the Limitation Act 1908 applies to a suit by a person bound by

an order ―respecting the possession of immoveable property‖ made under the

Code of Criminal Procedure 1898 or the Mamlatdar‘s Court Act 1906 or by

anyone claiming under such person to recover the property in the order. The

period of limitation is three years and time begins to run from the date of the final

order in the case. In order for Article 47 to apply, the suit must meet the

description specified in the first column. In other words, Article 47 applies only in

a situation where a Magistrate has passed an order respecting the possession of

immoveable property. When no order regarding possession of immovable

property which is the subject matter of a proceeding under Section 145 has been

passed, the suit shall not be of the description specified in the first column. It is

only if the Magistrate has passed such an order that the suit would meet the

description specified, and in which event Article 47 would govern. However,

though Article 47 is not attracted, a person aggrieved by the order of attachment

may file a suit for declaration of his right. On the determination of the right by the

civil court, he would become entitled for possession and the Magistrate is duty

bound to hand over possession in accordance with the order of the civil court. In

the present case, absent any order respecting possession under Section 145,

Article 47 on its plain terms has no application.

Articles 120, 142, 144

622. The next limb of the submission on the basis of which the bar of limitation

has been urged, is that Suit 4 is governed by Article 120. Now Article 120 deals

with suits for which no period of limitation is provided elsewhere in the schedule.
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Article 120 is in the nature of a residuary provision. Hence, where a specific

article in the schedule applies, the residuary article can possibly have no

application and it is only when the suit does not fall within the description

specified in any other article that the residuary provision would govern.

623. The two competing articles which have been pressed-in-aid on behalf of

the plaintiffs are Article 142 and, in the alternate, Article 144. Article 142 covers a

suit for possession of immoveable property when the plaintiff has either been

dispossessed while in possession of the property or has discontinued the

possession. Dispossession postulates an act of an involuntarily nature while

discontinuance is more in the nature of a voluntary cessation of possession. In

the present case, the plaintiffs in Suit 4 have sought a declaration that the

property indicated by the letters A B C D is a public mosque and that the land

delineated by the letters E F G H is a Muslim graveyard. Beside this, the plaintiffs

seek a prayer for the delivery of possession, in case the court is of the opinion

that such relief is deemed to be the proper remedy.

624. The basis on which it has been urged that Suit 4 is not a suit for

possession is that this Court has held in Deokuer v Sheoprasad Singh276 that

where property is custodia legis, it is not necessary to make an independent

prayer for the delivery of possession. Hence it has been urged that since a

specific prayer for seeking possession was not necessary, prayer (b) is otiose

and the character of the suit must be adjudicated only with reference to prayer

(a).
276 AIR 1966 SC 359

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The submission cannot be accepted. The decision of this Court in Deokuer lays

down that where property is custodia legis, it is sufficient to seek a declaration of

title. This is because the court receiver who is an officer of the court would hold

the property for the party who is found, upon adjudication, to be entitled to

possession. Since the receiver would be duty bound to hand over possession to

whoever is held by the court to be entitled to the property, a formal prayer for

seeking possession is not necessary. But what this submission misses is that a

suit seeking relief of possession has not been held to lack maintainability. A

declaration of title suffices because once property is custodia legis, possession

would necessarily follow the grant of the declaration upon the adjudication by the

court. The relief of possession is therefore implicit. To hold that a suit of this

nature where the property is custodia legis cannot possibly be held to be a suit

for possession is therefore a submission which has no valid basis.

625. The submission that Suit 4 is barred by limitation is founded on the

following hypotheses:

(i) The entire property which is the subject matter of the suit was custodia legis

consequent upon the proceedings under Section 145;

(ii) Once the property is custodia legis, a suit for declaration would suffice and there

is no need to seek the relief of possession;

(iii) Prayer (b) seeking a decree for the delivery of possession, ―if it is considered

necessary‖ is redundant; and

(iv) Consequently, in the absence of a prayer for possession, the suit is only one for

declaring the character of the mosque and is hence governed by

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Article 120 of the Limitation Act 1908.

The basic foundation on which the above submission is based is that the entirety

of the property comprised in the inner and outer courtyards was custodia legis

and was under the protective attachment of the receiver. However, as a matter of

fact on 18 December 1961 when the suit was instituted only the inner courtyard

had been attached in pursuance of the orders passed under Section 145. The

outer courtyard was placed under receivership only in 1982. In Suit 4, the

property which was the subject matter of the dispute was:

(a) The inner courtyard which had been attached under Section 145;

(b) The outer courtyard which had not been attached; and

(c) The adjoining graveyard which had not been attached.

626. Suit 4 related to both areas which were attached under Section 145 and

areas which were clearly not the subject matter of attachment. Consequently, the

declaration which was sought in the suit was not merely in respect of the land

which fell within the purview of the order of attachment. Relief was sought in

terms of:

(a) A declaration of the property described by the letter A B C D as a public mosque

(covering both the inner and outer courtyards) and the graveyard marked by the

letter E F G H; and

(b) Possession of the area of the mosque depicted as A B C D.

In addition, it must be noted that prayer (bb) was brought in by way of an

amendment as a consequence of the destruction of the entire mosque and the

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relief which was claimed was as against the statutory receiver who was

appointed as a consequence of the decision in Ismail Faruqui. In view of the

above position, it becomes evident that the relief of possession which was sought

in terms of prayer (b) was not only in respect of the area of the property which

covered what was attached, but also that which was not the subject matter of the

attachment. This being the position, the entire basis of the submission invoking

the bar of limitation suffers from a fallacy and cannot be accepted.

627. Reading the plaint, the grievance of the plaintiffs was that they were in

possession and had offered prayers till 23 December 1949. On 23 December

1949, it is alleged that the Hindus surreptitiously installed idols inside the mosque

as a result of which the mosque was desecrated. By pleading specifically that the

plaintiffs were in possession and had offered prayers until a particular date, the

sequitur is that after that date, the plaintiffs ceased to be in possession. This

being the position, it becomes evident that even before the property became

cutodia legis following the attachment under Section 145, the plaintiffs had been

ousted from possession. It was in this background, that in prayer (a), the plaintiffs

sought a declaration in regard to the character of the mosque as a public mosque

and in prayer (b) sought possession, in case it is necessary. Formulating a prayer

for relief in such terms is not unknown to the law of pleadings. Such was the case

for instance in C Natrajan v Ashim Bai277 where the reliefs were formulated in

the following terms:

―2. The appellant herein filed a suit against the respondents claiming,
inter alia, for the following reliefs:

277 (2007) 14 SCC 183

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―(a) For declaration of the plaintiff's title to the suit property;

(b) For consequential injunction, restraining the defendants,
their men, agents, servants, etc. from in any manner
interfering with the plaintiff's peaceful possession and
enjoyment of the suit property.
(c) Alternatively, if for any reason this Honourable Court
comes to a conclusion that the plaintiff is out of possession,
for recovery of vacant possession of the suit property; (d)
Directing the defendant to pay the costs of this suit.‖

This Court in proceedings arising out of an application for rejection of a plaint

under Order VII Rule 11 of the CPC, held that a plea in such a form would not

invalidate the additional relief. The Court observed:

―14. If the plaintiff is to be granted a relief of recovery of

possession, the suit could be filed within a period of 12 years.
It is one thing to say that whether such a relief can be granted
or not after the evidence is led by the parties but it is another
thing to say that the plaint is to be rejected on the ground that
the same is barred by any law. In the suit which has been filed
for possession, as a consequence of declaration of the
plaintiff's title, Article 58 will have no application.‖

The suit in the circumstances is a suit for possession of immoveable property

falling in the description provided by the first column of Article 142. The suit has

been instituted within a period of twelve years of the date of alleged

dispossession on 23 December 1949 and is hence within limitation. In the view

which has been taken above, the issue about whether a case of a continuing

wrong has been established has no relevance. On the basis that the cause of

action was completed on 23 December 1949, it is evident that the suit was

instituted within a period of twelve years from the date of dispossession. Whether

there was a continuing injury as opposed to a continuing wrong hence does not

arise in the above view of the matter.

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628. Mr Parasaran has submitted that the suit is for a declaration under Section

42 of the Specific Relief Act 1877 as to the character of property and not to the

title to the property. Learned counsel submitted that prayer (a) as phrased is for a

declaration that the property comprised within letters A B C D in the map annexed

to the plaint is a public mosque. On this basis, it has been urged that prayer (a)

does not seek a declaration of title. There is no merit in the submission. Prayer

(a) seeks a declaration not only with respect to the disputed structure of the

mosque but also in regard to the land which was appurtenant to it. This is also

evident from paragraph 21B of the plaint as amended which dealt with the

consequence of the demolition of the mosque on 6 December 1992. Paragraph

21B of the plaint contains a plea that notwithstanding the demolition of the

structure, the land continues to retain its character as a mosque.

629. The cause of action as set up by the plaintiffs was that the Muslims were in

peaceful possession of the mosque and used to recite prayer in it till 23

December 1949 when a crowd of Hindus with an intent to destroy, damage or

defile the mosque entered it and desecrated the mosque by placing idols inside.

The expression ―till 23 December 1949‖ in paragraph 11 of the plaint qualifies

not merely the offering of prayers in the mosque but the fact of possession as

well. Hence, a reading of paragraph 11 of the plaint indicates that the case of the

plaintiffs was that the act of entering upon the mosque on 23 December 1949 and

placing idols inside it was intended to destroy, damage and defile the character of

the mosque and that by doing so the mosque stood desecrated. Moreover, it is in

that context that the pleading in paragraph 23 is that the cause of action arose on

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23 December 1949 when the mosque was desecrated and interference in the

worship by the Muslims was caused. The evidence on the record indicates that

after the idols were introduced into the mosque on 23 December 1949, worship of

the idols was conducted by the priests within the precincts of the mosque. Hence,

the plea in the paragraph 11 is not just one of obstruction of the Muslims in

offering namaz in the mosque after 23 December 1949, but a dispossession with

effect from that date.

630. The inner structure was attached by a preliminary order under Section 145

on 29 December 1949 and the receiver assumed charge on 5 January 1950.

Reading the pleadings of the plaintiffs as a whole, it is evident that what has been

asserted in paragraphs 11 and 23 is not merely an obstruction which was caused

to the worship within the precincts of the mosque by the Muslims by the

placement of the idols. The case of the Muslims was that the mosque was

desecrated and defiled by the installation of the idols. Moreover, the very fact that

worship was offered exclusively by the Hindus within the precincts of the mosque

after the placement of the idols indicates a loss of possession by the Muslims.

An important aspect of the matter is that the events which took place on 22/23

December 1949 led to the ouster of the plaintiffs from the mosque. Hence, to

read the plaint as a plaint which merely spoke of the obstruction in performing

worship and not as a complaint against the ouster of the Muslims would be

incorrect. In fact, Justice Sudhir Agarwal has in the course of his discussion noted

that there was an ouster of the Muslims on 23 December 1949. In paragraph

2439, Justice Sudhir Agarwal observed thus:

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―…In the case in hand, the facts pleaded by the plaintiffs

show that they were ousted from the disputed premises on
22/23rd December, 1949 and the wrong is complete thereon
since thereafter they are totally dispossessed from the
property in dispute on the ground that they have no title.‖

A similar observation is contained in paragraph 2443 where it has been noted :

―…D. When the idols were placed under the central dome in
the night of 22nd/23rd December, 1949, and regular daily
Puja commenced according to Hindu Shastric Laws ousting
Muslims from entering the property in dispute.‖

These findings of the learned judge are inconsistent with his earlier observation

that there was no ouster from possession but merely an obstruction or

interference with worship. The act of placing the idols under the central dome on

the night intervening 22/23 December 1949 effectively desecrated the mosque.

The evidence indicates that Hindu prayers and worship commenced within the

mosque following the installation of the idols. This was an ouster of possession.

631. This being the position, the High Court was in error in applying the

provisions of Article 120. The suit in essence and substance was governed by

Article 142. Though, the last namaz was held on 16 December 1949, the ouster

of possession did not take place on that day. The next Friday namaz would have

been held on 23 December 1949 and the act of ouster took place on that date

and when the mosque was desecrated. The suit which was filed on 18 December

1961 was within a period of 12 years from 23 December 1949 and hence within

limitation. The view, which has been taken by the majority of the High Court

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holding that Suit 4 is barred by limitation, is hence incorrect. Suit 4 was filed

within limitation.

Alternatively, even if it is held that the plaintiffs were not in exclusive or settled possession of

the inner courtyard, the suit would fall within the residuary

Article144 in which event also, the suit would be within limitation.

O.5 Applicable legal regime and Justice, Equity and Good Conscience

632. The facts of the present case traverse three centuries. During the oral

arguments, the attention of this Court was drawn further back in time to written

accounts recording the life of Emperor Babur in the sixteenth and seventeenth

century. Taking the court beyond the pages of history, archaeological evidence

has been relied upon before the court. In seeking to establish their rights over the

disputed land, the parties have turned back the clock of human history, to

establish a point of genesis, where one party‘s claims over the disputed property

were uncontested: to establish the first right and the first wrong. This court is

called on to determine the legal consequences arising out of a thousand years of

prayer, contest, construction and destruction at the disputed site.

633. During this period, the disputed property has fallen within the territory of

various rulers and legal regimes. The question of which party, king or religion had

a first claim to the disputed site is one of significant historical interest. But this

court must determine what are the legal consequences arising from such an

enquiry. Human history is testament to the rise and fall of rulers and regimes. The

law cannot be used as a device to reach back in time and provide a legal remedy

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to every person who disagrees with the course which history has taken. The

courts of today cannot take cognisance of historical rights and wrongs unless it is

shown that their legal consequences are enforceable in the present. Thus, before

this Court embarks on a lengthy historical enquiry, it is important to consider the

extent to which acts done and rights accrued under previous legal regimes have

legal consequences today under our present laws.

634. The facts pertaining to the present case fall within four distinct legal

regimes: (i) The kingdoms prior to 1525 during which the ―ancient underlying

structure‖ dating back to the twelfth century is stated to have been constructed;

(ii) The Mughal rule between 1525 and 1856 during which the mosque was

constructed at the disputed site; (iii) The period between 1856 and 1947 during

which the disputed property came under colonial rule; and (iv) The period after

1947 until the present day in independent India.

635. Mr Vaidyanathan, learned Senior Counsel appearing on behalf of the

plaintiffs in Suit 5, placed great emphasis on the existence of an ancient Hindu

structure underneath the disputed property. Counsel contended that the ruins of

this structure were used in the construction of the mosque. Mr H S Jain, learned

counsel appearing on behalf of the Hindu MahaSabha urged that during Babur‘s

invasion of India, several temples were destroyed, including the temple

constructed by Vikramaditya at Ayodhya. He contended that during the Mughal

period, the territory now known as ‗India‘ was under ‗foreign‘ occupation -

Hindus were not permitted to exercise their religious rights and, upon the

adoption of the Constitution of India, the wrongs of the Mughals are liable to be

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rectified. To appreciate these arguments, it is necessary to understand the extent

to which our law recognises the legal consequences of acts done and rights

accrued under previous legal regimes.

Acts of State and changes in sovereignty

636. The principles determining the extent to which our courts can enforce the

legal consequences of actions and rights from previous legal regimes has been

laid down by the Privy Council and adopted by this Court after Independence. In

Secretary of State Council in India v Kamachee Boye Sahaba,278 the Rajah of

Tanjore died on 29 October 1855 without a legal heir, causing the East India

Company to declare that the Raj had lapsed to the colonial government. A letter

was sent by the colonial government, as the ‗new sovereign of Tanjore‘,

requesting a list of the private and public property held by the former ruler in

order to decide any claims made against this property. When no response was

received, a company official, ―taking advantage‖ of the presence of the 25th

Regiment of Infantry, took possession of the property of the Raja, placed it under

seal and stationed sentries to guard the property. A suit was brought before the

Supreme Court of Madras by the eldest widow of the erstwhile Raja with respect

to the private property of the former ruler. It was contended that upon the lapse of

the Raj, it was only the public property of the Raja that was acquired by the new

278 (1857-60) 7 Moo IA (476)

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ruler while the private property of the Raja was to be distributed in accordance

with the Hindu law of succession. The respondents contended that the seizure of

the Raja‘s property was an ―act of State‖ on behalf of the colonial government

as the new sovereign. The lapse of the Raj and the subsequent seizure involved

only the Raja and the colonial government - two sovereign powers, and

consequently, the court had no jurisdiction to entertain the matter. Accepting this

contention, Lord Kingsdown, speaking for the Privy Council held:

―But, whatever may be the meaning of this letter…It shows

that the [colonial] Government intended to seize all the
property which actually was seized, whether public or
private, subject to an assurance that all which, upon
investigation, should be found to have been improperly
seized, would be restored. But, even with respect to
property not belonging to the Rajah, it is difficult to
suppose that the Government intended to give a legal
right of redress to those who might think themselves
wronged, and to submit the conduct of their officers, in
the execution of a political measure, to the judgement of
a legal tribunal.
…
The result, in their Lordships‘ opinion, is, that the property
now claimed by the respondent [eldest widow] has been
seized by the British Government, acting as a Sovereign
power, through its delegate the East India Company; and that
the act so done, with its consequences, is an act of State
over which the Supreme Court of Madras has no
jurisdiction.
Of the propriety or justice of that act, neither the Court below
nor the Judicial Committee have the means of forming, or the
right of expressing, if they had formed any opinion. It may
have been just or unjust, politic or impolitic, beneficial or
injurious, taken as a whole, to those whose interests are
affected. They are considerations into which their
Lordships cannot enter. It is sufficient to say that, even if
a wrong has been done, it is a wrong which no Municipal
Court of justice can afford a remedy.‖
(Emphasis supplied)

637. The action of the colonial government in seizing the Raja‘s property was

an action between two sovereign actors - the colonial government and the State

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of Tanjore embodied by the Raja. The suit was instituted before the Supreme

Court of Madras, a court of the colonial government drawing on the colonial

government‘s sovereignty. The Privy Council held that the actions of the colonial

government vis-à-vis another sovereign entity (the Raja of Tanjore) were acts of

State and the municipal courts could not entertain matters questioning the legality of those

acts unless the colonial government itself recognised that the matter was justiciable. The Privy

Council held that there was no evidence to support the claim that the colonial government

recognised that legal redress was to be given to claimants of the Raja‘s property. Absent a

recognition by the colonial government that the consequences of the act of State were legally

enforceable in municipal law, municipal courts could not entertain suits with respect to the act

of State.

638. In 1899, this principle was followed by the Privy Council in its decision in

Thomas and James Cook v Sir James Sprigg.279 The respondents in appeal

had challenged certain agreements made by a Native Chief of Pondoland

granting concessionary rights over lands and forests to the appellants, as

delegates of the British Sovereign. The respondents contended that the

agreements were contrary to the laws of Pondoland at the time. The Privy

Council held the grant of lands and rights to the British Sovereign to be an act of

State between the ―Paramount Chief of the Pondos‖ and the British Sovereign

and could not be challenged before a municipal court on the grounds of violating

Pondo law. Lord Halsbury, speaking for the Privy Council, held:

―The taking possession by Her Majesty whether by cession

or by any other means by which sovereignty can be acquired

279 (1899) AC 572

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was an act of State and treating Sigcau [the Pondo Chief] as

an independent Sovereign – which the Appellants are
compelled to do in deriving title from him – it is a
wellestablished principle of law that the transactions of
independent States between each other are governed by
other laws than those which municipal courts administer.
It is no answer to say that by the ordinary principles of
International Law private property is respected by the
Sovereign which accepts the cession and assumes the
duties and legal obligations of the former Sovereign with
respect to such private property within the ceded
territory…if there is either an express or well-understood
bargain between the ceding Potentate and the Government to
which the cession is made that private property shall be
respected that is only a bargain which can be enforced by
Sovereign against Sovereign in the ordinary course of
diplomatic pressure.‖
(Emphasis supplied)

639. The common law principle which the Privy Council adopted was that

municipal courts cannot enforce the law applicable between two sovereign

states. The Privy Council clarified that irrespective of what international law had

to say on whether the new sovereign was subrogated into the shoes of the old

sovereign with respect to the legal obligations of the latter, a municipal court

cannot enforce such legal obligations in the absence of express recognition of

the legal obligations by the new sovereign. Where there is a change of

sovereignty from a former sovereign to a new sovereign, the municipal courts of

the new sovereign will not enforce the legal rights of parties existing under the

former sovereign absent an express recognition by the new sovereign of such

legal

rights.

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640. The applicability of the above principles to the question of proprietary rights

existing under a former regime was discussed in a 1915 decision of the Privy

Council in Secretary of State of India in Council v Bai Rajbai280. The

respondent in appeal, being part of a group called Kasbatis, had been given a

grant to collect rent from certain villages by the Gaekwar rulers of Ahmedabad. In

1817, the district of Ahmedabad was ceded by the Gaekwars to the British Government.

However, the settlement of the territories ceded was not practically implemented until 1822-23.

When the territory was ceded, the respondents were in possession of seventeen villages, but

refused to pay the requisite tax to the colonial Bombay government on the ground of their

grant by the former ruler. A settlement proposed by a Mr Williamson was also rejected by the

respondent and the Bombay government eventually executed a series of leases granting the

Kasbatis the villages ―at the pleasure of the government‖. The respondent filed a suit

claiming that upon the expiry of the leases, she was legally entitled to be granted a new lease.

Lord Atkinson, speaking for the Privy Council, observed:

―Before dealing with the action of which the Government of

Bombay took in reference to this village of Charodi on receipt
of these reports, it is essential to consider what was the
precise relation in which the Kasbatis stood to the Bombay
Government the moment the cession of their territory took
effect, and what were the legal rights enforceable in the
tribunals of their new Sovereign, of which they were thereafter
possessed. The relation in which they stood to their native
Sovereigns before this cession, and the legal rights they
enjoyed under them, are, save in one respect, entirely
irrelevant matters. They could not carry in under the new
regime the legal rights, if any, which they might have
enjoyed under the old. The only legally enforceable rights
they could have as against their new Sovereign were
those, and only those, which that new Sovereign, by
agreement expressed or implied or by legislation, chose
to confer upon them. Of course, this implied agreement
might be proved by circumstantial evidence, such as the
mode of dealing with them which the new Sovereign

280 ILR (1915) 39 Bom 625

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adopted, his recognition of their old rights, and express

or implied election to respect them and be bound by
them, and it is only for the purpose of determining whether
and to what extend the new Sovereign has recognised these
ante-cession rights of the Kasbatis, and has elected or
agreed to be bound by them, that the consideration of the
existence, nature, and extent of these rights become relevant
subjects for inquiry in this case. This principle is well
established…‖
…
In their Lordships‘ view, putting aside legislation for the
moment, the burden of proving that the Bombay
Government did so consent to any, and if so, to what
extent, rests, in this case upon the respondent. The
Kasbatis were not in a position in 1822 to reject Mr.
Williamson‘s proposal, however they might have disliked it, or
to stand upon their ancient rights. Those rights had for all
purposes of litigation ceased to exist, and the only choice,
in point of law, left to them was to accept his terms or to be
dispossessed.‖
(Emphasis supplied)

641. The cession of the territory of Ahmedabad by the Gaekwars to the colonial

government was an act of State between two sovereigns. Upon the cession of

the territory, the rights of the citizens within the territory of their new sovereign,

and consequently in the municipal courts of the new sovereign, were only those

expressly recognised by the new sovereign. Unless the new sovereign

recognised the rights of the citizens which existed in the old regime, the municipal

courts of the new sovereign could not enforce those ancient rights. This includes

the right to property of the citizens within the territory. Whether or not the new

sovereign should recognise the property rights of citizens is a contention to be

urged between the two sovereigns at a supra-national plane and a municipal

court would not entertain such contentions. The recognition of property rights

previously recognised in the old regime by the new sovereign need not be explicit

and may be implied through the conduct of the new sovereign and established

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through circumstantial evidence. However, the burden of proving the existence of

the right in the previous regime and the recognition of the right by the new

sovereign rested on the party claiming such a right.

642. The principles enunciated by Lord Atkinson have been adopted by this

Court after Independence. A significant number of disputes arose out of the rights

granted to individuals by former princely rulers prior to the cession of their

territories to the Republic of India. This Court was called upon to determine

whether such rights were enforceable after the change of sovereignty from the

princely rulers to the Republic of India.

643. In Promod Chandra Deb v State of Orissa332 a batch of writ petitions

were heard by a Constitution Bench of this Court. The facts of the petitions were

largely analogous to each other: the petitioners had received certain cash grants,

or Khor Posh grants, from princely rulers prior to these rulers ceding their

territories to the Republic of India (then the Dominion of India). A question arose

as to whether the State of Orissa, as a delegate of the Central Government, was

required to enforce the old laws of the princely states including the providing of

the Khor Posh grants. Referring to the Privy Council decisions discussed above,

Chief Justice B P Sinha speaking for the Constitution Bench laid down certain

principles applicable when the municipal courts of a new sovereign must enforce

rights accruing to parties from the legal regime of a previous sovereign:

―17. On an examination of the authorities discussed or

referred to above, the following propositions emerge. (1)
―Act of State‖ is the taking over of sovereign powers by a

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State in respect of territory which was not till then a part of its
territory, either by conquest, treaty or cession, or otherwise,
and may be said to have taken place on a particular date, if
there is a proclamation or other public declaration of such
taking over. (2) But the taking over of full sovereign powers
may be spread over a number of years, as a result of a
historical process
…
(5) As an act of State derives its authority not from municipal
law but from ultra-legal or supra-legal means, Municipal
Courts have no power to examine the propriety or legality of
an act which comes within the ambit of ―act of State‖. (6)
Whether the act of State has reference to public or
private rights, the result is the same, namely, that it is
beyond

332
1962 Supp (1) SCR 405
the jurisdiction of Municipal Courts to investigate the
rights and wrongs of the transaction and to pronounce
upon them and, that, therefore, such a Court cannot
enforce its decisions, if any. It may be that the presumption
is that the pre-existing laws of the newly acquired territory
continue, and that according to ordinarily principles of
International Law private property of the citizens is respected
by the new sovereign, but Municipal Courts have no
jurisdiction to enforce such international obligations.
…
(8) The Municipal Courts recognised by the new
sovereign have the power and jurisdiction to investigate
and ascertain only such rights as the new sovereign has
chosen to recognise or acknowledge by legislation,
agreement or otherwise. (9) Such an agreement or
recognition may be either express or may be implied
from circumstances and evidence appearing from the
mode of dealing with those rights by the new sovereign.
Hence, the Municipal Courts have the jurisdiction to find
out whether the new sovereign has or has not recognised
or acknowledged the rights in question, either expressly or
by implication, as aforesaid. (1) In any controversy as to the
existence of the rights claimed against the new sovereign, the
burden of proof lies on the claimant to establish the new
sovereign has recognised or acknowledged the right in
question.‖
(Emphasis supplied)

644. The Constitution Bench accepted the legal principles laid down by the

Privy Council in determining the method in which the legal consequences of acts

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of a previous legal regime are recognised. Crucially, it does not matter that the

acts pertain to public or private rights. Municipal courts will only recognise those

rights and liabilities which have been recognised by the new sovereign either

expressly or impliedly through conduct established by evidence. The municipal

courts of the new sovereign can embark upon an inquiry as to whether the new

sovereign has expressly or impliedly recognised the rights and liabilities existing

under a former regime. However, the burden to establish the existence and

recognition of such rights and liabilities remains on the party claiming them.

645. The principles laid down in Promod Chandra Deb were affirmed by a

seven-judge Bench of this Court in State of Gujarat v Vora Fiddali Badruddin

Mithibarwala .281 The seven-judge Bench also expressly rejected the contention

that grants given by a former sovereign are merely voidable until expressly

revoked by the new sovereign. The court held that such grants are not

enforceable by the municipal court of the new sovereign unless expressly or

impliedly recognised by the new sovereign. These principles have also been

affirmed by subsequent benches of this Court in Pema Chibar v Union of

India282 Union of India v Sudhansu Mazumdar283.

646. The evidence and arguments submitted before this Court have canvassed

four distinct legal regimes. The legal consequences of actions taken, proprietary

rights perfected, or injuries suffered in previous legal regimes can only be

enforced by this Court if they received implied or express recognition by

281 (1964) 6 SCR 461

282 (1966) 1 SCR 357
283 (1971) 3 SCC 265

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subsequent sovereigns. Absent such recognition, the change of sovereignty is an

act of State and this Court cannot compel a subsequent sovereign to recognise

and remedy historical wrongs.

Ancient rights claimed by the parties

647. The nature of the ancient underlying structure beneath the disputed

property dating back to the twelfth century has been the subject matter of great

controversy in the present proceedings. Mr Vaidyanathan contended that the

structure represented a Hindu temple. It was urged that the existence of an

ancient Hindu temple below the disputed property was evidence that title to the

disputed land vested in the plaintiff deities in Suit 5. It was further urged that as

the land of a deity is inalienable, the title of the plaintiff deities from the twelfth

century continues to be legally enforceable today. For this submission to be

accepted, it would need to be demonstrated that every subsequent sovereign to

the territory within which the disputed land falls either expressly or impliedly

recognised the title of the plaintiff deities in Suit 5. The burden to establish this

would rest firmly on the plaintiffs in Suit 5.

648. No argument other than a bare reliance on the ASI report was put forth. No

evidence was led by the plaintiffs in Suit 5 to support the contention that even if

the underlying structure was believed to be a temple, the rights that flow from it

were recognised by subsequent sovereigns. The mere existence of a structure

underneath the disputed property cannot lead to a legally enforceable claim to

title today. Subsequent to the construction of the ancient structure in the twelfth

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century, there exists an intervening period of four hundred years prior to the

construction of the mosque. No evidence has been led with respect to the

continued existence of the legal regime or any change in legal regime. It is

admitted by all parties that at some point during the reign of the Mughal empire, a

mosque was constructed at the disputed site. Even if this Court was to assume

that the underlying structure was in fact a Hindu temple which vested title to the

disputed site in the plaintiff deities, no evidence has been led by the plaintiffs in

Suit 5 to establish that upon the change in legal regime to the Mughal sovereign,

such rights were recognised.

649. The Mughal conquest of the territories was a supra-national act between

two sovereigns subsequent to which, absent the recognition by the new

sovereign of pre-existing rights, any claim to the disputed property could not have

been enforced by virtue of the change in sovereignty. This Court cannot entertain

or enforce rights to the disputed property based solely on the existence of an

underlying temple dating to the twelfth century.

650. The next change in legal regime occurred on 13 February 1856 with the

annexation of Oudh by the East India Company, which later became the colonial

government of the British Sovereign. The events which took place between 1856

and Indian Independence and beyond will be considered in great detail at various

parts of this judgement and we need not advert to it at this juncture. However,

certain factual aspects with respect to recognition of rights by the British

sovereign may be noted. Upon the annexation of Oudh by the British sovereign,

no actions were taken by the sovereign to exclude either the Hindu devotees of

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Lord Ram from worship nor the resident Muslims offering namaz at the disputed

property. On 15 March 1858, by the proclamation of Lord Canning, all property,

excluding a select few estates, were confiscated by the British sovereign and the

disputed property was designated as Nazul land (i.e. land confiscated and

vesting in the government). However, the conduct of the British government was

to respect the practices and prayer of both religious communities at the disputed

site. The construction of the railing in 1858 to separate and maintain law and

order between the two communities is premised on the worship of both religious

communities at the disputed property. If either community was not present at the

disputed site, no question of needing to separate the two communities could

have ever arisen. The Hindus however maintained immediate and continued

contest over their exclusion from the inner courtyard. In 1877, another door was

opened on the northern side of the outer courtyard by the British Government,

which was given to the Hindus to control and manage.

651. With respect to the change of legal regime between the British sovereign

and the Republic of India, there exists a line of continuity. Article 372 of the

Constitution embodies the legal continuity between the British sovereign and

independent India. Article 372(1) states:

―(1) Notwithstanding the repeal by this Constitution of the

enactments referred to in article 395 but subject to the other
provisions of this Constitution, all the law in force in the
territory of India immediately before the commencement
of this Constitution shall continue in force therein until
altered or repealed or amended by a competent Legislature
or other competent authority.‖
(Emphasis supplied)

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Article 296 of the Constitution states:

―Subject as hereinafter provided, any property in the territory

of India which, if this Constitution had not come into
operation, would have accrued to His Majesty or, as the case
may be, to the Ruler of an Indian State by escheat or lapse,
or as bona vacantia for want of a rightful owner, shall, if it is
property situate in a State, vest in such State, and shall, in
any other case, vest in the Union‖

These articles in the Constitution evidence a legal continuity between the British

sovereign and the Republic of India. Moreover, the conduct of the Republic of

India subsequent to attaining Independence was to uphold private property

claims that existed during the rule of the British sovereign. It cannot be said that

upon independence, all pre-existing private claims between citizens inter se were

extinguished. They were recognised unless modified or revoked by the express

acts of the Indian government. For the present purposes therefore, there is both

express and implied recognition that the independent Indian sovereign

recognised the private claims over property as they existed under the British

sovereign unless expressly evidenced otherwise. Therefore, the rights of the

parties to the present dispute which occurred during the colonial regime can be

enforced by this Court today.

652. This Court cannot entertain claims that stem from the actions of the

Mughal rulers against Hindu places of worship in a court of law today. For any

person who seeks solace or recourse against the actions of any number of

ancient rulers, the law is not the answer. Our history is replete with actions that

have been judged to be morally incorrect and even today are liable to trigger

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vociferous ideological debate. However, the adoption of the Constitution marks a

watershed moment where we, the people of India, departed from the

determination of rights and liabilities on the basis of our ideology, our religion, the

colour of our skin, or the century when our ancestors arrived at these lands, and

submitted to the rule of law. Under our rule of law, this court can adjudicate upon

private property claims that were expressly or impliedly recognised by the British

sovereign and subsequently not interfered with upon Indian independence. With

respect to the disputed property, it is evident that the British Sovereign

recognised and permitted the existence of both Hindu and Muslim communities at

the disputed property upon the annexation of Oudh in 1856. This culminated with

the construction of the railing in order to maintain law and order between the two

communities. The acts of the parties subsequent to the annexation of Oudh in

1856 form the continued basis of the legal rights of the parties in the present suits

and it is these acts that this Court must evaluate to decide the present dispute.

Justice, Equity and Good Conscience

653. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the

plaintiffs in Suit 4 contended that the substantive content of the law applicable to

the present case is ‗justice, equity and good conscience‘. Dr Dhavan contended

that while certain facets of the present dispute fall within a statutory framework,

there are significant gaps in the positive law which must be filled in by applying

the principles of justice, equity and good conscience.

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654. The import of this contention is that the Court must be mindful of the

genesis of the present dispute that spans over four distinct legal regimes – that of

Vikramaditya, the Mughals, the British and now, Independent India. In assessing

the submissions of the parties and arriving at the eventual conclusion, the needs

of justice require specific attention to the peculiarities of the case. The case

canvasses the rule of law, religion and law and conquest, besides a myriad of

conflicting interests. These cannot always be comprehended within the available

statutory framework applicable to the present facts. This makes the role of the

court even more sensitive as it must craft a relief that accords with justice, equity

and good conscience.

655. Any discussion on the concept of ‗justice, equity and good conscience‘

begs a few preliminary questions: (i) How did the concept originate?; (ii) What

does it entail?; and (iii) What was the Indian experience with the concept? In an

essay titled ―Justice, Equity and Good Conscience‖, Duncan Derrett notes

the

difficulties that plague a discussion of a concept whose contours are vague:

―It may be argued at the outset that ‗justice, equity and

good conscience‘ is a nice, comfortable formula meaning as
much or as little as the judges for the time being care to make
it mean. One might confine one‘s activity to considering how
judges have in fact construed the direction to consult it. The
results would not be of permanent value, since just as the
concept of public policy varies with the years and the venue,
so precedents may be of little help where this phrase is called
into play. Let us agree at once that stuff of the judicial
applications of the ‗residual‘ or ‗repugnancy‘ references has
limitation. Very few cases show a real curiosity as to what the
phrase means, many expressions fall per incuriam, and
consequently are of no authority. But a survey of some
representative application of the formula, and a review of its

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extraordinary history, may help to place the matter in

perspective, showing that it still has a lively part to play in the
development of the legal systems of developing countries.‖284

Equity and Romano-canonical origins

656. It is a common misconception that the term ‗justice, equity and good

conscience‘ has its origins in English law. Sir George Rankin succinctly stated

that the origins of ‗justice, equity and good conscience‘ did not point to English

law.285 Instead, Romano-canonical learning, which was common to the European

continent and appeared later in English minds of the sixteenth century, forms the

genesis of the concept. In his seminal work ―Ethics‖286, Aristotle considers the

relations between equity and justice. Although equity is not identical to strict

justice, it is nevertheless a kind of justice. To him, where the written statute is

unequipped to address the particular circumstances of the case and point to a

truly just outcome, aequitas (i.e. equity or fairness) steps in. Adherence to the

written law may lead to an unjust outcome. In this view, where certain factors

place the facts of a case on a different pedestal, such as public policy, it would be

unjust to impose the strict legal outcome of generally expressed laws.

Consequently, a departure from the written law is (according to Artistotle)

permissible. This departure served the specific purpose of elevating certain

considerations that inform a factual matrix in order to arrive at a just and

284 Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 120

285 Sir George Rankin, The Personal Law in British India, Sir George Birdwood Memorial Lecture on 21 February,
1941.
286 Aristotle, Ethics, JAK Thomson (trans) (London, Penguin, 1976) at pages 198–200.

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equitable conclusion. This notion was an inspiration for and foundation of the

Western legal tradition of equity.287

657. Derrett documents that the above notion influenced Romanic propositions

in two ways: (i) aequitas served as an ally in the interpretation of statute law to

correct, modify and if necessary, amend it; and (ii) to make good the deficiencies

of the written or otherwise ascertainable law. To this end, the role of equity was

formulated as follows:

―If we see iustitia [justice] as the correlative of aequitas, then

iustitia consists of positive law, made up of written and
unwritten sources, statutes and customs, the applicability of
these being determined either by positive law itself, or by the
natural equity, that is to say, the natural reason of the case.
But in another sense aequitas comes into the picture of
iustitia. There can be no ius in practice without its twin, the
aequitas in sense (i) which modifies or amends it to suit
circumstances. Ius strictum, or summum ius, the ‗letter of the
law‘, can very seldom, if ever, move without the aid of
aequitas, ‗equity‘. Thus, in sense (i) aequitas is bound up
with Justitia, and yet seems to be by definition an addition to it
ab extra. In the second sense of the term, aequitas fills the
gaps left by the positive law. It supplements the ius scriptum
sive non scriptum for cases not covered by statute, for
example, or contemplated by custom is so many words. In
sense (ii) aequitas is the most important source of law,
particularly for developing countries. Aequitas in this sense is
both scripta and non scripta.‖288

658. The correlation between law and justice was the defining factor– in one

sense, equity modifies the applicable law or ensures its suitability to address the

particular circumstances before a court to produce justice. The modification of

general rules to the circumstances of the case is guided by equity, not in

derogation or negation of positive law, but in addition to it. It supplements positive

287 Max Hamburger, Morals and Law: The Growth of Aristotle‘s Legal Theory (1965).
288 Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 120

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law but does not supplant it. In a second sense however, where positive law is

silent as to the applicable legal principles, equity assumes a primary role as the

source of law itself. Equity steps in to fill the gaps that exist in positive law. Thus,

where no positive law is discernible, courts turn to equity as a source of the

applicable law. In addition to these, Derrett notes that there is a third sense in

which equity or aequitas assumed importance – where established political

authority is taken away or is in doubt and the formal sources of law are in doubt,

the nature of judicial office requires a decision in accordance with ex bono et

aequo. This was evidenced in decisions concerning widows and orphans and in

the realm of mercantile law.

659. In all three senses noted above, equity offered judges the discretion to

marry general principles of law and the particular circumstances before them to

arrive at a just decision. However, this discretion was not unbridled. Derrett rightly

notes:

―What did this jurisdiction amount to? Did it mean that the
judge followed his nose, and gave judgment according to his
fancy? No…it is emphasized again and again that the judge
consults analogous provisions of law; juridical maxims, in
particular those contained in the Corpus juris, even though
they have not in fact been applied to such a case in the
written sources of law or equity; and the writings of jurists
steeped in legal thinking.
…
…The first step will be to see whether the other provisions of
the code throw any general light on the problem. This implies
an interpretation of ius scriptum…Thus equity in very many
cases involves consultation of law…‖289

289 Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 123

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In this sense, positive law and the general principles furnished by positive law

serve as a useful guide in ensuring that equity is not a method of giving effect

merely to the individual worldview of judges. Where positive law is silent and

equity steps in to furnish a source of law, its content is informed by analogous

provisions of the law that furnish a useful guide. This ensures that equity operates

within a larger legal framework informed by the values which underline the

legitimacy of the legal system as a whole.

Inroads into India

660. The application of ‗justice, equity and good conscience‘ to India commenced with

colonial rule in Bombay. As Bombay assumed prominence as a commercial centre,

there arose a need for a system of mercantile law to avoid the inadequacies of the

common law in its application in India as well as in the English Admiralty courts.

Company judges appointed in 1669 were hence required to adjudicate in accordance to

good conscience.290 Eventually, the Royal

Charters of (i) 9 August, 1683 set up the mercantile and admiralty courts at

Bombay; and (ii) 30 December, 1687 set up the Municipality and Mayor‘s Court at Madras.

The Court of Judicature at Bombay was required to adjudicate

‗according to the rules of equity and good conscience, and according to the laws

and customs of merchants.‘ The Mayor‘s Court at Madras was to be guided

according to equity and good conscience.

661. On 5 July, 1781 Governor General Warren Hastings passed the

290 B Lindsay, British Justice in India, the University of Toronto Law Journal, Vol. 1, No. 2 (1936), at page 344

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Regulations for the Administration of Justice in the Court of Dewanee Adaulat of the

provinces of Bengal, Bihar and Orissa. Regulation 60 of the said regulations stated:

―That in all cases, within the jurisdiction of the Mofussil

Dewannee Adalat, for which no specific Directions are hereby
given, and respective Judges thereof do act according to
Justice, Equity and Good Conscience.‖

A similar provision for Judges of the Sadr court was made in Regulation 93.

Though these provisions were procedural in nature, they marked further inroads

of the concept into the Indian administrative and legal framework. Regulation 9 of

Regulation VII of 1832 reads:

―Where parties are of different persuasions, the laws of the

religions shall not deprive a party of property to which, but for
the operation of such laws, he would have been entitled. In all
such cases, the decisions shall be governed by the principles
of justice, equity and good conscience, it being clearly
understood, however, that this provisions shall not be
considered as justifying the introduction of the English or any
foreign law, or the application to such cases of any rules not
sanctioned by these principles.‖

Accompanying this was the space carved out for the application of the personal

law of the parties. For example, in 1781 itself, the Parliament passed the Act of

1781, Section 17 of which stipulated that the Supreme Court should have the

power to entertain all suits against the inhabitants of Calcutta:

―Provided that inheritance and succession to lands, rents

and goods, and all matters of contract and dealing between
party and party, shall be determined in the case of
Mahomedans by the laws and usages of Mahomedans, and
in the case of Gentoos, by the laws and usages of Gentoos;
and where only one of the parties shall be a Mahomedan or
Gentoo by the law and usages of the defendant.‖291

291 See also Article 27 of the Plan of 1772 which reads: ―That in all suits regarding inheritance, marriage and
caste and other religious usages and institutions, the laws of the Koran with respect to Mahomedans and those
of the Shaster with respect to Gentoos shall be invariably adhered to. On all such occasions the Molavies shall
respectively attend to expound the law and they shall sign the report and assist in passing the decree.‖ See also
Section 15 of Regulation IV of the Cornwalliis Code of 1793.

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The scheme for administration of justice drawn up by Warren Hastings was

characterized by two main features: one was that of decentralisation by the

introduction of subordinate courts, both civil and criminal. The other was the

reservation to both Hindus and Mohammedans of their own personal laws and

usages in the domain of their domestic relations.

662. Until the 1850s, judges turned to Hindu personal law and Muslim personal

law to decided matters of faith and religion. Where the exact provisions were not

certain, judges required the reassurance that their decisions were in consonance

with the needs of justice in every case. For this, they turned to ‗justice, equity

and good conscience‘.

The conflation between the concept and English law

663. Alongside the introduction of ‗justice, equity and good conscience‘ in the

Indian legal system, another parallel development gradually took place - despite

the broad underpinnings of the term which allowed reference by analogy to

varied systems of law, over time, there arose a presumption that the term

‗justice, equity and good conscience‘ was synonymous with English law. The

expansion in the powers of the East India Company was accompanied with a

vesting in the Company of the power of administration of justice. MC Setalvad

writes:

―As the Company‘s territories became gradually enlarged by

settlement and conquest the Privy Council, as the highest
court of appeal from the decisions of the Indian courts,
became a growing influence in the application of the basic

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principles of English jurisprudence as the rules of decision all

over the country. It was natural, perhaps inevitable, that the
eminent English judges, who presided over this tribunal
should attempt to solve the problems that came before them
wherever Indian regulations or statutes contained no
provisions applicable to them by drawing upon the learning on
which they had been brought up and the rules and maxims to
which they had been accustomed for a lifetime. This explains
why from the earliest times the decisions of this tribunal in
appeals from India have resulted in a steady and continuous
granting of the principles of common law and equity into the
body of Indian jurisprudence.‖292

664. With an increase in the activities of the East India Company, judges and

barristers trained in English law moulded the Indian judicial system. This led to,

an increased reference to English law both in arguments before courts as well as

in the judgments of the Courts in British India. The distinguished American

scholar Marc Galanter has documented the conflation of the term with English

law:

―In their search for authoritative bodies of law, the British

made collections and translations of ancient texts and recent
commentaries. However, Indian law proved strangely
elusive…It was soon recognized that sastra was only a part of
the law and that in many matters Indians were regulated by
less formal bodies of customary law. But even customary law
was not sufficient…The need to fill the felt gaps was
ultimately to lead to statutory codification on the basis of
English law. But in the meantime, courts, empowered to
decide cases in accordance with ‗justice, equity and
good conscience‘, filled the interstices of sastra and
custom with ‗unamalgamated masses of foreign law‘.
Although there was some attempt to draw the most suitable
rule from other sources, in most cases the [English] judges
were inclined
to assume that English law was most suitable.‖293
(Emphasis Suuplied])

292 MC Setalvad, The Common Law in India (1960) at pages 31-32.

293 Marc Galanter, Law and Society in Modern India (1997), at pages 221,222.

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665. The applicable law was stated to be the parties‘ personal law and the

colonial government initially relied on the testimonies of pandits and maulvis to

translate religious texts which would be used to adjudicate. Eventually, this

system was abolished and increased reliance was placed on English translations

of the relevant religious texts. Ultimately, the colonial government sought to fill

any remaining lacunae with English law. 294 Another impetus was the setting up of

the Privy Council in 1833 as the final court of appeal from India. These together

resulted in the conflation between ‗justice, equity and good conscience‘ and

English law. However, in truth, the term ‗justice, equity and good conscience‘

authorises a broad-ranging reference to analogous systems of law to source

legal principles that can be applied to the specific case before the court and

ensure a just outcome.

666. The correct legal position was noted by Chief Justice Barnes Peacock in

Degunbaree Dabee v Eshan Chunder Sein347 where it was held:

―Now, having to administer equity, justice and good

conscience, where are we to look for the principles which are
to guide us? We must go to other countries where equity and
justice are administered upon principles which have been the
growth of ages, and see how the courts act under similar
circumstances; and if we find that the rules which they have
laid down are in accordance with the true principles of equity,
we cannot do wrong in following them.‖

A true understanding of the evolution of the concept found expression in judicial

294 Sir George Rankin, the Personal Law in British India, Sir George Birdwood Memorial Lecture on 21
February, 1941– ―Under the scheme of 1772 the English judges in the civil courts were to get their law form the
pandits and moulavies. These ―law officers‖ lasted as an institution from 1772 till 1864, then they were
abolished, not before their usefulness had come to an end. There was no system of training them, as Sir
Thomas Strange was to point out (1825); their qualifications were not always great, nor temptation always
absent. It was imperative that the texts should be made available to the judges themselves, and the labours of
Jones, Henry Colebrooke, the

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decisions in India. In Gatha Ram Mistree v Moohita Kochin Atteah

Domoonee,348 the plaintiff filed a suit for the restitution of conjugal rights. The

Deputy Commissioner held that though a ceremony took place, it did not

constitute a formal marriage. No reasons were given and hence, the matter was

remanded. In addition to this direction, Justice W Markby made an additional

observation with respect to the enforceability of a decree of restitution of conjugal

relations:

Macnaghtens, and Strange were directed to the translation of the original authorities and the exposition of their contents.‖
347
(1868) 9 W.R. 230, 232. 348
(1875) 23 W.R. 179
―But surely, when we look to the law of England for a guide,
it is where that law is in harmony with the general
principles of equity and jurisprudence that we should
adopt it, not where it is exceptional. That the English law,
on the subject of enforcing conjugal rights, is exception, I
have no manner of doubt…It appears to me, therefore, that if
we were to hold that a court could enforce continuous
performance of conjugal duties by unlimited fine and
imprisonment, we should place the law of this country in
opposition to the law of the whole civilized world, except
the ecclesiastic law of England.‖
(Emphasis supplied)

The court clarified that even where courts look to English law to furnish a guide,

the first step was to check whether it conformed to the principles of general equity

and justice. The court recognised that while the exaction of conjugal duties or

pain of unlimited fines and imprisonment might conform to the position in

England, the court was not bound to adopt it where the governing principles of

the civilised legal regimes indicated that it was against justice, equity and good

conscience to do so.

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667. In Radha Kishen v Raj Kaur295, a man who bore children from a woman

outside his caste was treated to be an outcaste. Upon his death, the

woman held his property, the possession of which she handed to their

children upon her death. The brothers of the man sued for the recovery of

his property contending that the woman and their illegitimate children had

no right to the property. The court, without any reference to English law,

held that the property was selfacquired and that justice, equity and good

conscience required that the suit be dismissed. Chief Justice Edgar and

Justice Knox writing together for the

Allahabad High Court held:

―We cannot find amongst the authorities and texts cited to

us any sure principle to guide us in this case. Under these
circumstances we must act on the principles of equity and
good conscience, and decline to oust from the possession of
the property acquired by Khuman his sons and their mother
and the widow of the deceased son for the benefit of the
vendee of brothers …‖

No explicit reference was made to English law, but to general principles that would

provide content to the concept of ‗justice, equity and good conscience.‘

668. In Rajah Kishendatt Ram v Rajah Mumtaz Ali Khan296, the Privy Council

dealt with the rights of redemption of a mortgagor whose property had

received accretions through certain mergers by the mortgagee in

possession. Justice JW Colville spoke thus:

―27…If the principle invoked depended upon any technical

rule of English law, it would of course be inapplicable to a
case determinable, like this, on the broad principles of equity
295 (1891) 13 All 573
296 (1878-79) 6 IA 145

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and good conscience. It is only applicable because it is

agreeable to general equity and good conscience. And, again,
if it possesses that character, the limits of its applicability are
not to be taken as rigidly defined by the course of English
decisions, although those decisions are undoubtedly
valuable, in so far as they recognize the general equity of the
principle, and show how it has been applied by the Courts of
this country.‖

669. The position that the term ‗justice, equity and good conscience‘ indicates

English law is thus unsupported. The formula ―was a device to escape from

English law, not to call it in‖. 297 It is true that its application in India heralded the

diffusion of English Law into the Indian legal system by virtue of globalisation,

acculturation and common epistemic communities. The formula authorised

reference by analogy to systems of law across national frontiers. Though the

Roman origins of the term stand for a broader application of the term even where

there is an express provision that governs the case, the development of the term

as it evolved in India indicates that it is only where the positive law and customary

law was silent or led to perverse or absurd outcomes, that the principles of

justice, equity and good conscience were applied.

Justice, Equity and Good Conscience today

670. With the development of statutory law and judicial precedent, including the

progressive codification of customs in the Hindu Code and in the Shariat

Act 1937, the need to place reliance on justice, equity and good

conscience gradually reduced. There is (at least in theory) a reduced

scope for the application of justice, equity and good conscience when

297 Dr J Duncan M Derrett, Justice Equity and Good Conscience In Changing Law in Developing Countries (JND
Anderson ed.)

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doctrinal positions established under a statute cover factual situations or

where the principles underlying the system of personal law in question can

be definitively ascertained. But even then, it would do disservice to judicial

craft to adopt a theory which excludes the application of justice, equity and

good conscience to areas of law governed by statute. For the law develops

interstitially, as judges work themselves in tandem with statute law to arrive

at just outcomes. Where the rights of the parties are not governed by a

particular personal law, or where the personal law is silent or incapable of

being ascertained by a court, where a code has a lacuna, or where the

source of law fails or requires to be supplemented, justice, equity and good

conscience may properly be referred to.

671. Post-independence, Indian Courts have utilised the concept less frequently

but adopted a broader view of the term ‗justice, equity and good

conscience‘. Two cases of this Court are instructive. In Namdeo Lokman

Lodhi v Narmadabai352, it was argued that the amendment made in 1929

to Section 111(g) of the Transfer of Property Act requiring a written notice

by the lessor for the determination of a lease embodies a principle of

justice, equity and good conscience. Justice Mehr Chand Mahajan (as he

then was), writing for a two judge Bench of this Court held:

―7. The main point for consideration thus is whether the

particular provision introduced in sub-section (g) of Section
111 of the Transfer of Property Act in 1929 is but a statutory
recognition of a principle of justice, equity and good
conscience, or whether it is merely a procedural and technical
rule introduced in the section by the legislature and is not
based on any well established principles of equity. The High
Court held, and we think rightly, that this provision in

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subsection (g) of Section 111 in regard to notice was not

based upon any principle of justice, equity and good
conscience.

18. …In England it is not necessary in case of non-payment

of rent for a landlord to give notice before a forfeiture results.
It cannot, therefore, be said that what has been enacted in
subsection (g) of Section 111 is a matter which even today in
English law is considered as a matter of justice, equity and
good conscience.‖

This Court held that the requirement of a notice being issued by the lessor upon

the non-payment of dues was one of procedure, and absent a statutory mandate,

the same could not be introduced under the guise of ‗justice, equity and good

conscience.‘ It appeared at a first glance that the Bench conflated justice, equity

and good conscience with the position in English law. This is not the correct

position. The view expressed in this case was reinterpreted by this Court in

352
1953 SCR 1009
Murarilal v Dev Karan298 which arose out of a redemption suit filed by the

respondent against the appellant. The respondent had contended that though the

period to repay the loan taken by him against a mortgage of certain properties

had elapsed, the right to redeem continued to vest in him. This was resisted by

the appellant who contended that upon the expiry of the repayment period

stipulated, the appellant became the absolute owner of the mortgaged property.

Though Section 60 of the Transfer of Property Act embodied the equity principle

of redemption, it was not applicable in Alwar where the dispute arose. A

Constitution Bench of this Court held that the mortgage deed contained a

provision which amounted to a clog on the equity of redemption. Chief Justice PB

Gajendragadkar, speaking for the Bench held:

298 (1964) 8 SCR 239

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―5. Therefore, the main question which arises in the present

appeal is: Does the equitable doctrine ensuing the
mortgagors equity of redemption in spite of a clog created on
such equity by stipulation in the mortgage deed apply to the
present case? This question arises in this form, because the
Transfer of Property Act did not apply to Alwar at the time
when the mortgage was executed nor at the time when the 15
years' stipulated period expired.

15. In dealing with this argument, it would be relevant to

observe that traditionally, courts in India have been consistently
enforcing the principles of equity which prevent the
enforcement of stipulations in mortgage deeds which
unreasonably restrain or restrict the mortgagor's right to
redeem… In fact, in Namdeo Lokman Lodhi v. Narmadabai
[(1953) SCR 1009] this Court has emphatically observed
that it is axiomatic that the courts must apply the principles
of justice, equity and good conscience to transactions
which come before them for determination even though the
statutory provisions of the Transfer of Property Act are not
made applicable to these transactions. These
observations, in substance, represent the same
traditional judicial approach in dealing with oppressive
unjust and unreasonable restrictions imposed by the
mortgagees on needy mortgagors when mortgage
documents are executed.

16. … Even so, we think it would be reasonable to assume

that civil courts established in the State of Alwar were like
civil courts all over the country, required to administer
justice and equity where there was no specific statutory
provision to deal with the question raised before them. ….
In the absence of any material on the record on the point, we
are reluctant to accept Mr Sarjoo Prasad's argument that the
doctrine of equity and justice should be treated as irrelevant in
dealing with the present dispute.

20. Thus it is clear that the equitable principle of justice, equity

and good conscience has been consistently applied by civil
courts in dealing with mortgages in a substantial part of
Rajasthan and that lends support to the contention of the
respondent that it was recognised even in Alwar that if a
mortgage deed contains a stipulation which unreasonably
restrains or restricts the mortgagor‘s equity of redemption

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courts were empowered to ignore that stipulation and enforce

the mortgagor's right to redeem, subject, of course, to the
general law of limitation prescribed in that behalf. We are,
therefore, satisfied that no case has been made out by the
appellant to justify our interference with the conclusion of the
Rajasthan High Court that the relevant stipulation on which
the appellant relies ought to be enforced even though it
creates a clog on the equity of redemption.‖

672. The Court also cited instances of decisions of the High Courts which had

held that Section 60 of the Transfer of Property Act embodied the just and

equitable principle. In this view, the Bench took a broader view of the principles

embodied by justice, equity and good conscience. The Court held that the view of

this Court in Namdeo is consistent with and similar to the analogous situation of

unreasonable and oppressive contractual terms and in that sense, justice, equity

and good conscience was analogous to English law only where English law itself

was in conformity with the principles supported by justice, equity and good

conscience.

673. The common underlying thread is that justice, good conscience and equity

plays a supplementary role in enabling courts to mould the relief to suit the

circumstances that present themselves before courts with the principle purpose

of ensuring a just outcome. Where the existing statutory framework is inadequate

for courts to adjudicate upon the dispute before them, or no settled judicial

doctrine or custom can be availed of, courts may legitimately take recourse to the

principles of justice, equity and good conscience to effectively and fairly dispose

of the case. A court cannot abdicate its responsibility to decide a dispute over

legal rights merely because the facts of a case do not readily submit themselves

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to the application of the letter of the existing law. Courts in India have long

availed of the principles of justice, good conscience and equity to supplement the

incompleteness or inapplicability of the letter of the law with the ground realities

of legal disputes to do justice between the parties. Equity, as an essential

component of justice, formed the final step in the just adjudication of disputes.

After taking recourse to legal principles from varied legal systems, scholarly

written work on the subject, and the experience of the Bar and Bench, if no

decisive or just outcome could be reached, a judge may apply the principles of

equity between the parties to ensure that justice is done. This has often found

form in the power of the court to craft reliefs that are both legally sustainable and

just.

Equity and Article 142

674. The concept of ‗justice, equity and good conscience‘ as a tool to ensure a

just outcome also finds expression in Article 142 of the Constitution which reads:

―142. (1) The Supreme Court in the exercise of its

jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or
matter pending before it, and any decree so passed or order
so made shall be enforceable throughout the territory of India
in such manner as may be prescribed by or under any law
made by
Parliament and, until provision in that behalf is so made, in such
manner as the President may by order prescribe.‖
(Emphasis supplied)

The phrase ‗is necessary for doing complete justice‘ is of a wide amplitude and

encompasses a power of equity which is employed when the strict application of

the law is inadequate to produce a just outcome. The demands of justice require
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a close attention not just to positive law but also to the silences of positive law to

find within its interstices, a solution that is equitable and just. The legal enterprise

is premised on the application of generally worded laws to the specifics of a case

before courts. The complexities of human history and activity inevitably lead to

unique contests – such as in this case, involving religion, history and the law -

which the law, by its general nature, is inadequate to deal with. Even where

positive law is clear, the deliberately wide amplitude of the power under Article

142 empowers a court to pass an order which accords with justice. For justice is

the foundation which brings home the purpose of any legal enterprise and on

which the legitimacy of the rule of law rests. The equitable power under Article

142 of the Constitution brings to fore the intersection between the general and

specific. Courts may find themselves in situations where the silences of the law

need to be infused with meaning or the rigours of its rough edges need to be

softened for law to retain its humane and compassionate face. Above all, the law

needs to be determined, interpreted and applied in this case to ensure that India

retains its character as a home and refuge for many religions and plural values. It

is in the cacophony of its multi-lingual and multi-cultural voices, based on a

medley or regions and religions, that the Indian citizen as a person and India as a

nation must realise the sense of peace within. It is in seeking this ultimate

balance for a just society that we must apply justice, equity and good conscience.

It is in these situations, that courts are empowered to ensure a just outcome by

passing an order necessary to ensure complete justice between the parties.

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675. In Union Carbide Corporation v Union of India,299 this Court speaking

through Chief Justice Ranganath Misra circumscribed the power under Article

142 in the following manner:

―83…Prohibitions or limitations or provisions contained in

ordinary laws cannot, ipso facto, act as prohibitions or
limitations on the constitutional powers under Article 142…But
we think that such prohibition should also be shown to be
based on some underlying fundamental and general issues of
public policy and not merely incidental to a particular statutory
scheme or pattern. It will again be wholly incorrect to say that
powers under Article 142 are subject to such express
statutory prohibitions. That would convey the idea that
statutory provisions override a constitutional provision.
Perhaps, the proper way of expressing the idea is that in
exercising powers under Article 142 and in assessing the
needs of ―complete justice‖ of a cause or matter, the apex
Court will take note of the express prohibitions in any
substantive statutory provision based on some fundamental
principles of public policy and regulate the exercise of its
power and discretion accordingly. The proposition does not
relate to the powers of the Court under Article 142, but only to
what is or is not ‗complete justice‘ of a cause or matter and in
the ultimate analysis of the propriety of the exercise of the
power. No question of lack of jurisdiction or of nullity can
arise.‖

Where rigidity is considered inadequate to address a situation, the plenary power

of this Court for doing complete justice is an appeal of last resort to the inherent

quality of equity that the law is designed to protect, to ensure that the Court is

empowered to craft a relief that comports with both reason and justice. Similarly,

in Supreme Court Bar Association v Union of India300, Justice A S Anand,

speaking for the Court held:

―47…It, however, needs to be remembered that the powers

conferred to the court by Article 142 being curative in nature
cannot be construed as powers which authorise the court to
ignore the substantive rights of a litigant while dealing with a

299 (1991) 4 SCC 584

300 (1998) 4 SCC 409

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case pending before it ... Article 142, even with the width of its
amplitude, cannot be used to build a new edifice where none
existed earlier, by ignoring express statutory provisions
dealing with a subject and thereby to achieve something
indirectly which cannot be achieved directly.‖

676. The extraordinary constitutional power to pass any decree or an order

which, in the opinion of this Court is necessary for doing complete justice

embodies the idea that a court must, by necessity, be empowered to craft

outcomes that ensure a just outcome. When a court is presented before it with

hard cases301, they follow an interpretation of the law that best fits and justifies

the existing legal landscape - the constitution, statutes, rules, regulations,

customs and common law. Where exclusive rule-based theories of law and

adjudication are inadequate to explain either the functioning of the system or

create a relief that ensures complete justice, it is necessary to supplement such a

model with principles grounded in equitable standards. The power under Article

142 however is not limitless. It authorises the court to pass orders to secure

complete justice in the case before it. Article 142 embodies both the notion of

justice, equity and good conscience as well as a supplementary power to the

court to effect complete justice.

O.6 Grants and recognition

677. The Sunni Central Waqf Board has set up the case that Babri Masjid was

built by or at the behest of Babur in 1528 and was dedicated as a place for

Muslims to offer prayer. The claim is that since the date of its construction until

301 Ronald Dworkin, Hard Cases, Harvard Law Review, Vol. 88., No. 6 (Apr. 1975), pp. 1057-1109.

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the mosque was attached in December 1949, Muslims offered prayers

continuously in the mosque. Expenses for the upkeep and maintenance of the

mosque were stated to have been realised in the form of a cash grant which was

paid by the royal treasury during the rule of Babur which was continued under

colonial rule by the British.

678. The significant aspect of the case which has been pleaded in Suit 4 is the

construction of the mosque in 1528 A.D. and its use by Muslims for the purpose

of offering prayer thereafter. But, a crucial aspect of the evidentiary record is the

absence of any evidence to indicate that the mosque was, after its construction,

used for offering namaz until 1856-7. Justice Sudhir Agarwal noticed this feature

of the case bearing on the lack of evidence of the use of the mosque for the

purpose of worship until the riots of 1856-7. The learned Judge also noted the

submission of Mr Jilani for the Sunni Central Waqf Board in the following extracts:

―2314…even if for the purpose of the issues in question we

assume that the building in dispute was so constructed in
1528 A.D., there is no evidence whatsoever that after its
construction, it was ever used as a mosque by Muslims at
least till 1856-57. Sri Jilani fairly admitted during the course of
arguments that historical or other evidence is not available to
show the position of possession or offering of Namaz in the
disputed building at least till 1855…‖

During the course of the hearing before this Court, this observation on the

absence of any evidence indicating worship by Muslims prior to 1856-7 was

specifically put to Dr Rajeev Dhavan learned Senior Counsel appearing on behalf

of the Sunni Central Waqf Board. Learned Senior Counsel did not deny that the

evidentiary record which is relied upon by the Sunni Central Waqf Board

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essentially commences with the grants which were stated to have been continued

by the British Government for the upkeep of the mosque. Bearing this in mind, it

is necessary now to scrutinise the evidence.

I Grants by the British Government for upkeep of mosque

679. According to the Sunni Central Waqf Board, the colonial government

continued grants for the upkeep and maintenance of the mosque originally given

during the time of Babur. In this regard, the Sunni Central Waqf Board has in the

course of its written submissions formulated its reliance on the documentary

record thus:

―(a) The extract of Register Mafiat bearing Government Orders dated

March 13, 1860 and June 29, 1860 show the name of Babur
as the donor/grantee.
• Further Column 13, which refers to the order of the Chief
Commissioner, states that- ―So long the Masjid is kept up
and
the Mohammadans conduct themselves properly, I
recommend the continuance of the grant.‖

• Moreover, in column 14, headed ‗Final order of

Government‘ it has been mentioned that- ―Released so
long as the object for which the grant has been made is
kept up vide Government Order No.2321 dated January
29, 1860.‖

Justice Sudhir Agarwal noted in his judgment that this appears to be a copy of

some register ―but it is an extremely torn document and the contents on

page 163 are almost illegible‖. He observed the following:

―(b) The Register of Inquiry (14.3.1860) of rent free land records

that Emperor granted revenue grant of Rs.302/3/6 to Mir Baqi

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for the purposes of construction and maintenance of Mosque

namely Babri Mosque at village Shahnawa. The following
points were recorded in the register:
• The name of Emperor Babur was noted as the ‗grantee‘.
• The rent-free land is situated at village Shahnawa and that
it generates an annual revenue of Rs.302, 3 ana and 6 pai.
• This rent-free land grant was given as a Waqf at the time
of construction of Babri Masjid by Babar for meeting the
expenses of the salary of Muezzin and Khatib.
• This rent free grant was given to Saiyed Baqi for his
lifetime and thereafter to his son for lifetime and thereafter
to Saiyed Hussain Ali.
• Decision of the Board (dated June 29, 1880) was that the
grant will survive till the continuation of the purpose for
which it was given exemption from land revenue.‖

The document states that there is ―no knowledge of the date of grant‖ and the

name of the donor/grantor is ―on the basis of testimony‖. Similarly, it has been

stated that ―based on the testimonies, this land free grant was given as waqf at

the time of the preparation for construction of Babri Masjid at Ayodhya by

Emperor Babur for meeting the expenses and the salary of ―Muezzin and

Khateeb‖. The order and date are not known:

―(c) Copy of the excerpts of the Register No. 6 (e),
conditional land revenue exemption of Tehsil Faizabad dated
29 June 1860. In this Register, the name of ‗Mohd. Asghar
and Mohd.
Rajjab Ali‘ is recorded as the name of the person who is holding the
rent-free land (reflected in Column. 6 & 7).‖

II Conversion of cash nankar grant into grant of revenue free land 680. In

1864, the British Government converted the cash nankar into a grant of revenue-

free land situated in the Villages of Sholapur and Bahoranpur in the vicinity of

Ayodhya. A certificate of grant was executed in favour of Rajjab Ali and Mohd

Asghar, bearing the seal of the Chief Commissioner. It reads:

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―It having been established after due inquiry that Rajjab Ali
and Mohd. Asghar received a Cash Nankar of (Rs. 302-3-6)
Rupee Three Hundred and two three annas six pie from
Mauza Shahanwa District Fyzabad, in rent free tenure under
the former Government. The Chief Commissioner, under the
authority of the Governor General in Council is pleased to
maintain the grant for so long as the object for which the grant
has been made is kept up on the following conditions. That
they shall have surrendered all sunnds title deeds and other
documents relating to the grant in question. That they and
their successors shall strictly perform all the duties of land
holders in matters of Police, and any Military or Political
service that may be required of them by the Authorities and
that they shall never fall under the just suspicion of favouring
in any way the designs of enemies of the British Government.
If any one of these conditions is broken by Rajjab Ali and
Mohammad Asghar or their successor the grant will be
immediately resumed.‖

Dealing with the above documents, Justice Agarwal has observed:

―2336. The above documents though show that some grant

was allowed to Mir Rajjab Ali and Mohd. Asgar but it does not
appear that any kind of inquiry was made by the authorities
concerned and if so, what was the basis therefor. According to
the claim of Muslims, the Commander of Babar, who was
responsible for construction of the building in dispute was Mir
Baqi while Mir Rajjab Ali claimed himself to be the son-
inlaw of the daughter of grand son of Syed Baqi. Mohd.
Asgar was son of Mir Rajjab Ali, therefore, the son and
father claimed relation with the 4th generation of the
alleged original Mutwalli and staked their claim for grant.
No material existed to show that earlier such grant was
awarded by any one though stated by the aforesaid two
persons. If we go by the averments of the plaint that the
alleged waqf was created in 1528, it is wholly
untrustworthy to find out that in the last more than 325
years, it could only be the fourth generation and its
relatives are at the best 5th generation. The authorities in
1860-61 were not under a duty to act judicially in this matter
and therefore, might not have given any details of their
enquiry as to on what basis the alleged enquiry was
conducted. Ex facie, to us, the genealogy of Mir Rajjab Ali
commencing from Syed Baki who must have existed in
1528 is unbelievable. It is not out of context that the story of
grant might have been set up by the two persons i.e. father
and son for the purpose of obtaining valuable grant from

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Britishers in their favour. In any case, these documents

only show that a financial assistance was provided by
the British Government for the purpose of the mosque in
question but this by itself may not be a proof that the
building in dispute was used by Muslims for offering
Namaz or for Islamic religious purposes to the extent of
ouster of Hindu people or otherwise.‖
(Emphasis supplied)

From the above extract, it appears that a grant was provided to Rajjab Ali and

Mohd Asghar. However, certain significant facets emerge from the record:

(i) The absence of a due enquiry indicating the basis of the grant;

(ii) A claim set up by Mir Rajjab Ali stating that he was the son-in-law of the

daughter of the grandson of Mir Baqi while Mohd Asghar was the son of Mir

Rajjab Ali; and

(iii) The absence of any material to indicate the basis for such a grant being

granted in the previous history of 325 years; and

(iv) The setting up of a claim by a person belonging to the fourth generation from

Mir Baqi with no evidence on the record of the intervening period of over three

centuries.

Be that as it may, the High Court has noted that the documents would show that

financial assistance was provided by the British for the purposes of the

maintenance of the mosque, but this would not amount to proving that the

structure was used for the purpose of offering namaz. In connection with the

above grant of revenue free land, the following documents have been relied

upon:

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―(i) On August 25, 1863, Secretary Chief Commissioner of

Awadh wrote to the Commissioner Faizabad Division
mentioning that the Governor General has sanctioned Chief
Commissioner‘s proposal for the commutation of the cash
payment of Rs.302-3-6 granted in perpetuity for the support of
the Janamasthan Mosque to the grant of rent-free land near
Ayodhya. It was further requested that a provision for the
change be made by grant of some Nazul Land near
Ayodhya.‖ (Exhibit A 14 Suit 1)
(ii) On August 31, 1863, an order was passed by Deputy
Commissioner regarding the rent-free land (fetching an
annual rent of Rs. 302/3/6) which was sanctioned by the
Government to the Masjid Janamsthan. It was ordered that
the map of the proposed land marked for the purpose should
clearly indicate boundaries and be sent by the Deputy
Commissioner to the Commissioner.
(iii) On September 13, 1860, order was passed by the
Deputy Commissioner, Faizabad, wherein it was stated that
the map of the lands which had been selected for approval for
giving in lieu of the lands of the Masjid had been sent. It was
therefore ordered that the proceedings be presented before
the Additional Assistant Commissioner for immediate action.
(iv) Thereafter several orders were passed to consider as to
which lands were to be allotted for the purpose of the Masjid.
(v) On October 10, 1865 it was ordered that possession of the
lands should be immediately given and acknowledgment
should be taken.
(vi) On October 19, 1865, it was reported that the proceedings
regarding the handing over the land have been completed and the
acknowledgement was also confirmed.
(vii) Subsequently, on October 30, 1865, the file was consigned to the
record.‖

III Grants of 1870

681. The British Government having discontinued the annual cash grant, on

repeated representations of Mohd Asghar and Rajjab Ali, granted fresh land in

Muafi in the villages of Bhuraipur and Sholapur in 1870. Later on, a sanad was

issued by the Chief Commissioner that the cash nankar of Rs 302/3annas/6pies

received by Rajjab Ali and Mohd Asghar as rent-free tenure in village Shahanwa

under the former Government (Rule of Nawab) was being maintained (as Muafi
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and in the villages of Bhuraipur and Sholapur) under the authority of the Governor

General in Council so long as the object for which the grant had been made was

kept up.

On 3 January/February 1870, an order was passed by the Settlement Officer in Mohd

Afzal Ali and Mohd Asghar v Government302, wherein it was decreed as

follows:

―The superior proprietary right in Mauza Bahronpur is decreed

revenue free to Mohammad Asghar and Mohammad Afzal
Ali.‖

IV Nakal Khasra Abadi

682. In 1931, the entry in the Nakal Khasra Abadi mentioned in the Nazul register

records the presence of Babri Masjid at Plot No. 583 and notes that the same was a

―Masjid Waqf Ahde Shahi‖. This document also notes that the Ramchabutra was

famous as the birth-place.

The document inter alia contains the following entries:

―Dastandazi (11) Indraz Raghunath Das Janambhumi Ke

Mahant Mukarrar Kiye Gaye, Ke
Bajaye Mahant Ram Sharan Das.

Kaifiyat (Details) (16) Masjid Pokhta Waqf Ahde Shahi andar

Sahan Masjid Ek Chabutara Jo
Janambhumi Ke naam Se Mashhoor
Hai, Darakhtan Goolar Ek Imli Ek
Mulsiri Ek, Pipal Ek, Bel Ek..Masjid
Mausma Shah Babur Shar Marhoom.‖

302 Case No.5

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O.7 Disputes and cases affirming possession

683. After the riots of 1856-7, the British set up a railing outside the threedomed

structure. This evidently appears to have been done to maintain peace and order.

Muslims would worship inside the railing while the Hindus would worship outside.

The platform which has been described as Ramchabutra was constructed by the

Hindus in close proximity to and outside the railing. The construction of the

Ramhabutra was adverted to in the written statement of Mohd Asghar in the Suit of

1885. Though, according to the Muslims, on an application by them, an order was

passed for digging out the Ramchabutra, no order has been placed on record.

Following the incident of 1856-7, several cases were instituted. These include the

following:

Case No 884 – Eviction of Nihang Singh Faqir from Masjid premises:

(i) On 28 November 1858, Thanedar Sheetal Dubey filed an application stating

that one Nihang Singh Faqir Khalsa resident of Punjab, organised hawan and

puja of Guru Gobind Singh and erected a symbol of ‗Sri

Bhagwan‘ within the premises of the Masjid. The Thanedar requested that action,

as deemed necessary, may be taken;

(ii) On 30 November 1858, Syed Mohammad Khatib (Moazzin of the Babri

Masjid) lodged a complaint, being case number 884, before the Station

House Officer about the installation of a Nishan by Nihang Singh and

requested its removal. In the application, he stated that:

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a) Nihang Singh is creating a riot in the masjid;

b) He had forcibly made a Chabutra inside the masjid, placed a picture of the idol

inside the masjid, lit a fire and was conducting puja. He had written the words

―Ram Ram‖ with coal on the walls of the masjid;

c) The masjid is a place of worship of Muslims and not Hindus, and if someone

constructs anything forcibly inside it, he should be punished;

d) Previously also the Bairagis had constructed a Ramchabutra overnight of about 1

ballisht height (about 22.83 cms), until injunction orders were issued;

e) The application stated:

―Previously the symbol of janam sthan had been there and

Hindus did puja‖

f) It was therefore prayed that:

i. The spot may be inspected, and the new construction be

demolished; and ii. Hindus be ousted from the masjid and the symbol

and the idol may be removed and the writing on the walls be washed.

(iii) A dispute has been raised about the translation of the above document by Mr

Pasha, learned Counsel appearing on behalf of the plaintiffs in Suit 4.

The document was translated thus:

―You are the master of both the parties since the Shahi ear
(sic) if any person constructs forcibly he would be punished
by your honour. Kindly consider the fact that Masjid is a place
of worship of Muslims and not that of Hindus. Previously the
symbol of Janamsthan had been there for hundreds of
years and Hindus did puja.‖
(Emphasis supplied)

The correct translation, according to Mr Pasha, should read thus:

―It is evident from the clear words of the Shah that if any
person constructs forcibly he would be punished by the

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government and your honour may consider the fact that

Masjid is a place of worship of the Muslims and not the
contrary position that previously the symbol of Janamsthan
had been there for hundreds of years and Hindus used to
perform puja.‖
(Emphasis supplied)
The words ―and not the contrary position‖ in the submissions of Mr Pasha are

contrived. They militate against the tenor of the letter of the Moazzin. The

complaint was against the erection of a Ramchabutra inside the Masjid and in

that context it was stated that though previously the symbol of the Janmasthan

has been there for hundreds of years and Hindus conducted puja, a construction

had been made inside the Masjid for the first time.

(iv) An order was passed on 30 November 1858, pursuant to which Sheetal

Dubey, Thanedar visited the disputed premises and informed Nihang Singh

about the order but he replied that the entire place is of Nirankar and the

government of the country should impart justice;

(v) On 1 December 1958, Sheetal Dubey, Thanedar submitted a report in case

number 884, describing that when he took the summons order dated 30

November 1858 addressed to Nihang Singh Faqir for leaving the place, he

received no reply. He reported what had actually transpired and sought

instructions from the higher authorities;

(vi) An order dated 5 December 1858 was issued in case number 884 wherein

a direction was issued by the court in furtherance of the order dated

November 30, 1858 (wherein it was directed that the Faqir sitting in Babri

Masjid should be ousted) directing the Police Sub-Inspector Avadh that in

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case the Faqir is not removed from the spot, he must be arrested and

presented in court;

(vii) On 6 December 1858, a report was submitted by Sheetal Dubey, Thanedar

Oudh recording the appearance of the Faqir in court; and

(viii) On 10 December 1858, an order was passed recording that the Jhanda

(flag) was uprooted from the masjid and the Faqir residing therein was

ousted.

684. Case no 223 filed on 5 November 1860 by Mir Rajjab Ali: On 5

November 1860, an application was filed by Mir Rajjab Ali against Askali Singh in

Case number 223 complaining about a new ―Chabootra‖ being constructed in the

graveyard. In this application it was stated that:

a) A small ―Chabootra‖ had been constructed in the graveyard adjacent to

Babri Masjid by one Nihang. He was told not to do so but he did not refrain

and became violent;

b) Previously, about a year and a half earlier, Hari Das (Mahant of Hanuman

Garhi) tried to build a house forcibly and was made to execute a

bond/undertaking for non-interference. The said undertaking is still

available in the files;

c) The Commissioner also found a flag which had been pitched within the

grounds of Babri Masjid and upon seeing it, got the flag removed;

d) Nowadays, when the Moazzin recites Azan, the opposite parties begin to

blow conch shells; and

e) The newly built ―Chabootra‖ should be directed to be demolished and an

undertaking/ bond should be taken from the opposite party that they will

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not unlawfully and illegally interfere in the masjid property and will not blow

conch shells at the time of Azaan;

685. On 12 March 1861, an application was filed by Mohd Asghar, Rajjab Ali and

Mohd Afzal, in furtherance of the previous application, stating that Imkani Sikh

had illegally occupied the lands of the plaintiffs and had erected a ―Chabootra‖

without permission near Babri Masjid. Even though on the previous application,

orders were issued to evict Imkani Sikh from the ―Chabootra‖, but the hut where

he was staying still remained. It was submitted that whenever a Mahant will go

there or stay in the hut, a cause for dispute will arise. It was therefore prayed that

an order be issued to the Sub-Inspector that after the eviction of Imkani Sikh, the

hut/kutir should also be demolished and precaution should be taken so that a

foundation of a new house is not allowed to be laid;

(i) On 18 March 1861, the Subedar tendered a report regarding the execution

of an order dated 16 March 1861. It was stated that not only has Imkani

Sikh been evicted from the Kutir (hut) but the hut has also been

demolished; and

(ii) Thereafter on 18 March 1862, the application dated 12 March 1861

preferred by Mohd Asghar, Mir Rajjab Ali and Mohd Afzal was directed to

be consigned to the records.

686. Application against Tulsidas and other Bairagis (Included in case

number 223 already decided on 18 April 1861): On 25 September 1866, an

application was filed by Mohd Afzal (mutawalli Masjid Babri) against Tulsidas and

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other Bairagis, praying for demolishing a Kothri which had been newly

constructed ―for placing idols etc.‖ inside the door of the Masjid where the

Bairagis had constructed a ―Chabootra‖. In this application it was stated that:

a) Babri Masjid situated near Janmasthan in Oudh Khas was constructed by

Shah Babur;

b) For the last few days, Bairagis were attempting to build Shivalaya near the

masjid, but due to the vigilance of the Muslims and timely reporting of the

matter, the authorities imposed restrictions and prevented a dispute;

c) Now about a month ago, the defendants, Tulsidas/Bairagis with the

intention of placing idols, had constructed a Kothri in the compound of the

mosque. The construction was done illegally within a few hours;

d) The police had already been informed but no orders regarding the

demolition of the Kothri have been issued by the government. Owing to

this Kothri, there is an apprehension of a daily clash;

e) Previously they had constructed a Ramchabutra overnight and because of

this construction, riots happened. Now a small Kothri had been constructed

within a short span of time. There was a possibility that they could increase

such constructions gradually; and

f) Accordingly, it was prayed that the mosque may be protected from the

Bairagis and orders for dismantling the Kothri may be passed.

g) On 12 October 1866 the Deputy Commissioner, Faizabad passed an order

on the application of Mohd Afzal (included in case number 223) against

Tulsidas, directing its consignment to records.

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687. Niyamat Ali and Mohd Shah v Gangadhar Shastri: On 26 August 1868,

an order was passed by Major J Reed, Commissioner, Faizabad in an appeal

against the order dated 25 June 1868 passed by the Officiating Deputy

Commissioner, Faizabad in the case of Niyamat Ali and Mohd Shah v

Gangadhar Shastri. This case was filed by the Muslims against one Ganga Dhar

alleging that he was encroaching on the north-western corner of the masjid. The

order dismissed the appeal as no encroachment was proved. However, the

following observations were made:

(i) The maps show that the house of Ganga Dhar touched the wall of the masjid,

and there was no encroachment;

(ii) There could be no encroachment until the wall of the Masjid itself had been dug

into, however it had not been so alleged; and

(iii) The previous order of the Commissioner dated 27 February 1864 directed that

Hindus should not encroach on the boundaries of the mosque and

Ramchabutra. However, since so encroachment was proved, there was no

reason to interfere.

688. Mohd Asghar v Government: On 22 February 1870, a suit was filed by

Mohd Asghar (Mutawalli of Babri Masjid) seeking to evict the defendant who was

a Faqir from occupation of the trees of Imli (Bagh Imli), Khandhal and graveyard.

It was stated that:

(i) 21 Imli trees had always been in possession of the applicants and their ancestors

since ancient times;

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(ii) The Faqir who was their servant was earlier residing there with the

permission of the ancestors of the plaintiffs;

(iii) During the ‗Shahi‘ period, the Faqir turned against the plaintiffs‘ ancestors and was

therefore ousted from the premises; and

(iv) Hence, a decree for eviction be passed against the Faqir from the trees and the

graveyard.

(v) On 22 August 1871, an order was passed, dismissing the claim of Mohd

Asghar regarding ownership of the Qabaristan in the vicinity of ‗Masjid Babar

Shah Mauja Kot Ram Chandar‘ while decreeing the claim over the

trees. The order contained the following observations:

―Possession of Plaintiffs over the tamarind trees was established,

but right of ownership cannot be of the
Plaintiffs as this is general graveyard and courtyard in
front of the door of the Masjid Janamsthan. Therefore, such
an Arazi (piece of land) cannot be private
property.‖

689. Placing of Idol in 1873: In November 1873, an idol was placed on the

‗platform of Janmasthan‘ (referred to in the Deputy Commissioner‘s report dated 14

August 1877 and Commissioner‘s order dated 18 December 1877);

(ii) On 7 November 1873, an order was passed in the case of Mohd Asghar v

Mahant Baldeo Das directing the removal of the Charan Paduka which

was not complied with; and

(iii) On 10 November 1873, Baldeo Das was directed by the Deputy

Commissioner to remove an image placed on the Janmasthan platform. A

report was submitted stating that an officer had gone to the house of

Baldeo Das who was not found. The order was explained to other priests
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who said they could not carry out the order. These orders were not

complied with and the image was not removed.

690. Opening up of the northern gate (Singh Dwar in 1877) - Mohd Asghar

v Khem Dass: On 3 April 1877, the Deputy Commissioner, Faizabad granted

permission to the Hindus to open a new door (Singh Dwar) in the northern outer

wall of the disputed building. This permission was challenged by Mohd Asghar by

filing an appeal303, where he claimed that:

a) Each place within the boundary wall of the mosque is the mosque;

b) The general principle is that the matters relating to a masjid should be

‗handed over‘ to Muslims while matters relating to the temple should be

handed over to the Hindus. Thus, the permission accorded to the defendants

for opening the gate was in contravention of this basic

principle;

c) Previously, on 7 November 1873, an order was passed directing the Hindus to

remove the idols. Therefore, when there is no permission to install idols, a right

over the wall of the masjid could not be given to the defendants;

d) On the door of the outer wall of the masjid, the word Allah is engraved;

e) When the appellant himself had requested that he be permitted to open the said

door at his own expense and he was ready and willing to open it, the defendants

who belonged to another religion could not have been accorded permission to

open the additional door; and

303 Misc Appeal No.56

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f) The defendant with the intention of occupying the area continued to indulge in

several activities and on being restrained by anyone, becomes aggressive and

was bent to fight with him.

On 14 May 1877, a report was submitted by the Deputy Commissioner, stating

that if the other door was not opened, human life would be endangered as there

was a great rush. Ultimately, on 13 December 1877, the appeal was dismissed on

the ground that the outer door was in the interests of public safety. The order

states that the petition was merely an attempt to annoy the Hindus by making

them dependent on the pleasure of the ‗mosque people‘ to open or close the

second door.

691. The sequence of events emanating from the installation of an idol in 1873,

the specific permission to the Hindus to open an additional access on the

northern side and the observations in the appeal that the objections to the

opening were baseless are significant. The presence and worship of the Hindus

at the site was recognised and the appellate order rejected the attempt to cede

control over the entry door to the Muslims as this would make the Hindu

community dependent on them. The administration in other words recognised

and accepted the independent right of the Hindu worshippers over the area as a

part of their worship of the idols.

692. Mohd Asghar v Musammat Humaira Bibi and Sunder Tiwari (1878): On

3 June 1878, a decree was passed in favour of Mohammed Asghar in claim

petition no 2775 of 1877 in the matter of Mohd Asghar v Musammat Humaira

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Bibi and Sunder Tiwari and Bhola Tiwari and Kanshi Ram, claiming 3/8 th part of

Zamindari rights of Mauza Bahoranpur Pargana Haveli Oudh. The petition was

allowed in favour of Mohammad Asghar, the plaintiff who had prayed for

evacuation and cancellation of a sale deed dated 10 August 1876 for part of

Mauza Zamindari Bahoranpur.

693. Mohd Asghar v Raghubir Das Mahant and Nirmohi Akhara: On 8

November 1882, Suit no 374/943 of 1882 was filed by Mohd Asghar (who was

the Mutawalli of Babri Masjid) against Raghubar Das claiming rent for the use of

the Chabutra and Takhat situated near the door of Babri Masjid. In this plaint the

Chabutra has been described to have been situated near the door of Babri Masjid or before

the masjid. By an order dated 18 June 1883, the Sub-Judge Faizabad dismissed this suit. The

necessary consequence was that Raghubar Das was not required to pay compensation to the

Mutawalli for occupation.

694. Mohd Asghar v Mahant Raghubar Das304: On 2 November 1883, Sayyed

Mohd Asghar filed case number 19435 before the Assistant Commissioner,

stating that he is entitled to get the wall of the mosque white-washed but is being

obstructed by Raghubar Das. The following points in the application are

important:

a) Plaintiff is unable to explain the complaints of defendant that the birthplace

Chabutara within the Ahata of the Masjid belongs to the defendant. Thus the

304 Case No. 19435

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defendant has no relation with the outer wall of Ahata, kathera and Phatak and

all these relate to the Masjid;

b) Allah is written on the outer wall;

c) Whenever any need for repairing/renovation/white washing of the mosque has

arisen, only the applicant has got it done;

d) The applicant/plaintiff has purchased the material, but the defendant came there

for doing the work and therefore a dispute has arisen; and

e) The defendant has no right whatsoever, except over the Chabutra and Sita

Rasoi.

f) On 12 January 1884, an order was passed to maintain status quo and to leave

the outer door open;

g) On 22 January 1884, the Assistant Commissioner, Faizabad passed an

order.

a) Restricting Raghubar Das from carrying out repairs in the inner as well

as the outer part of the compound; and

b) Mohd Asghar was advised not to lock the outer door of the mosque as

it was necessary that old existing orders be observed and complied

with and there should be no interference in it.

h) Subsequently on 27 June 1884, Raghubar Das, filed an application in requesting

the Assistant Commissioner, Faizabad to make a spot inspection of the premises

complaining that Muslims were violating the order of restraint.

Impact of Suit of 1885

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695. Mahant Raghubar Das instituted the Suit of 1885 against the Secretary of State

for India seeking permission to construct a temple at the Chabutra admeasuring

17 x 21 feet where the Charan Paduka were affixed and worshipped. In the

section on res judicata, the nature of the suit has been analysed and a finding

has been arrived at that the decision does not attract the provisions of Section 11

of the CPC 1908.

696. However, certain salient aspects of the proceedings may be noted:

(i) The cause title mentioned the name of Mahant Raghubar Das as ―Mahant

Janmasthan Ayodhya‖. Conspicuous by its absence was any reference to

Nirmohi Akhara in the plaint;

(ii) The suit was not based on a claim of title;

(iii) The only relief that was sought was the grant of permission simpliciter to construct the

temple on the Chabutra;

(iv) In the absence of any plea of title, the adjudication in the suit must necessary be

construed as being confined to what was prayed namely permission to construct a

temple on the Chabutra;

(v) The map that was annexed to the suit does indicate the existence of the

Masjid. But it equally indicates of worship by Hindus in the outer courtyard.

The map submitted by Gopal Sahai, as a Court Commissioner appointed

in the suit, together with his report dated 6 December 1885 shows the

existence of the Masjid on the western side of the Chabutra;

(vi) The suit was contested by Mohd Asghar as Mutawalli of Babri Masjid who claimed inter

alia that:

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(a) Babur had got the mosque constructed on which the word ‗Allah‘

was inscribed;

(b) The Chabutra was built in 1857 and was opposed by Muslims; and

(c) Previously, a restraint was imposed on construction activities.

(vii) The Sub-Judge while dismissing the suit noted that:

(a) After the construction of a wall with a railing, Muslims were praying

inside the Masjid and the Hindus, outside at the Chabutra;

(b) Before this, both Hindus and Muslims were worshipping in the place

but to avoid any controversy, the wall had been erected; and

(c) The Chabutra was in the possession of and belonged to the

Hindus.
697. The Sub-Judge in declining permission indicated that to permit the

construction of the temple would essentially alter the status quo resulting in a

breach of peace. The order of the Sub-Judge dismissing the suit was affirmed in

first appeal primarily on the ground that any breach of the status quo would

seriously impinge upon the maintenance of peace. Hence, the findings in regard

to the possession and ownership of the Chabutra were redundant and were

deleted. In a second appeal, the order of the First Appellate Court was affirmed.

While the Judicial Commissioner considered it unfortunate that a mosque had

been constructed on a site which the Hindus attributed as the birth-place of Lord

Ram, he was of the view that a breach of the status quo at that stage was

undesirable.

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698. All the findings in the Suit of 1885 must be read in the context of the nature

of the proceedings, the party who had moved the court for relief and its outcome.

The suit was not of a representative nature. No permission to sue in a

representative capacity was sought or obtained. The Mahant of the Janmasthan

claimed relief personal to him. Neither was a declaration of title sought nor was

the objective of the suit anything beyond seeking permission to construct a

temple on the Chabutra in order to obviate inconvenience to faqirs and

worshippers. Hence, the outcome of the suit would have no impact or bearing on

the parties to the present proceedings or on the issue of title.

Incidents between 1934 and 1950

Communal riots of 1934

699. In 1934, as a result of the communal riots, substantial damage was

sustained to the domes of the disputed structure. The structure was renovated at

the cost of the British through a Muslim contractor. In this context, the following

documents have been relied upon:

(a) An application was moved by Mohd. Zaki and others

for compensation of the losses caused in the riots on
27 March 1934. In this application it was mentioned
that:-

• The Bairagis of Ayodhya and Hindus attacked the Babri

Masjid intentionally and caused great damage.
• The repair of the masjid will require a huge sum of money.

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• It was therefore prayed that the estimated cost of repairs,

i.e. Rs.15000 be recovered from the Bairagis and other
Hindus of Ayodhya as per Section 15 of the Police Act 1861.
(b) The Dy. Commissioner Faizabad on 6.10.1934
allowed the aforesaid amount of compensation to be
paid for damages to the Babri Mosque subject to any
other objections.
(c) Thereafter on 22.12.1934, Notice was published by
District Magistrate, Faizabad with respect to fine
imposed under section 15A(2) of the Police Act and
for its realization from the Hindu residents of Ayodhya.
(d) Meanwhile by an Order dated May 12, 1934 the
Muslims were permitted to start the work of cleaning
of Babri Mosque from May 14, 1934, so that it could
be used for religious purposes.‖

700. During the course of the communal riots which took place in 1934, the

domes of the disputed structure were damaged. Renovation was carried out at

the cost of the British Government through a Muslim contractor and a fine was

imposed on the Bairagis and Hindus of Ayodhya to recover the cost of repair. On

12 May 1934, the Muslims were permitted to commence the cleaning of the

mosque in order for it to be used for religious purposes.

Repairs to the mosque

701. Following the decision to allow repairs to be conducted, the documentary

evidence produced by the Sunni Central Waqf Board includes:

(i) Claims by the contractor who repaired Babri Masjid for the payment of his

outstanding bills and orders for verifying the work which was done towards

effecting payment between 1935 and April 1936; and

(ii) Resolution of the claim for the arrears of salary of the Pesh Imam of Babri

Masjid between July 1936 and August 1938.

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The suit between Nirmohis

702. The next stage in the developments which took place post the riots of 1934

consists of Suit 95/1941, instituted by Mahant Ramcharan Das against

Raghunath Das and others. This suit pertained to properties claimed by Nirmohi

Akhara including the Ramchabutra described as ―Janmabhumi Mandir‖. Babri

Masjid is adverted to in the list of properties provided in the suit. A report was

submitted by the Commissioner on 18 April 1942. The suit was disposed of by a

compromise dated 4 June 1942 in terms of which a decree was drawn up. The

suit pertained to a dispute inter se between the Nirmohis. The Muslim parties

have relied on the compromise as indicating the existence of Babri Masjid and

the graveyard.

The suit between Shias and Sunnis

703. In 1945, there was a litigation between the Shias and Sunnis in Suit

29/1945 which was decided on 30 March 1946. The grievance of the Shias, as

stated in their notice dated 11 April 1945 that the Commissioner of Waqfs

included Babri Masjid in the list of Sunni mosques. The plaint notes that the

Masjid was located at Janmasthan Ayodhya. The suit was dismissed by holding

that the mosque was a Sunni mosque. The Sunni Central Waqf Board, by a letter

dated 25 November 1948 sought an explanation as to how, upon the death of the

previous Mutawalli another individual was working in the mosque.

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O.8 Proof of namaz

704. Several witnesses who deposed on behalf of the plaintiffs in Suit 4 stated

that they had visited the Babri Masjid to offer namaz. Their evidence is of

relevance to determine whether namaz was being offered at the disputed

property as well as the frequency of the namaz.

705. Mohammad Hashim (PW-1): The age of the witness was stated to be

about 75 years. In the affidavit filed in lieu of the Examination-in-Chief, the

witness stated that Tabari was read only in Babri Masjid. He had sometimes read

five times namaz and the namaz of Jumme and Tabari. He claims to have read

the last namaz on 22 December 1949. In his cross-examination the witness

stated that it was in 1938 that he first went to read namaz. He further stated in his

cross-examination that namaz was offered five times daily at the disputed site.

During the course of his cross-examination, the witness gave a description of the

structure of the mosque. The witness states that there was no door in the east,

but he later stated that the door at the east was three feet higher than him. In his

cross-examination, the witness stated that he had read the Namaz Isha at 8 pm

on 22 December 1949 in Babri Masjid. He stated that he remembered that the

eastern gate was locked when Gopal Singh Visharad filed the suit on 15 January

1950 but did not know about the other gate. In his cross-examination PW-1 stated

that the disputed building was unlocked on 2 February 1986 and a Writ

Petition was instituted pursuant to the opening of locks in February 1986.

PW-1 was unable to recollect information accurately. In his cross-examination, he stated:

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―I do not remember that I mentioned my age 55 years in the

affidavit submitted in 1986 with Writ Petition‖ (the Affidavit of
the Writ Petition was shown to the witness).‖

When asked about the Writ Petition filed pursuant to the opening of the lock, the witness

stated the following in the cross-examination:

―It is correct that my memory is weak due to the old age but our
Advocate may be knowing about it.‖

The witness was unable to recall when his two marriages took place. He was not

able to recall the age of his daughter. The lapses in the memory of the witness

under cross-examination cast doubt on the statements contained in the affidavit

in lieu of the Examination-in-Chief.

706. Haji Mehmood Ahmed (PW-2): The date of the Examination-in-Chief of the

witness is 17 September 1976. The witness was about 58 years old. The witness

stated that he had offered namaz more than a hundred times at the disputed

property. The witness stated that he had been offering five times namaz, except

Friday namaz at Babri Masjid. Namaz was last offered by him on 22nd

December, 1949. According to his account, there was no restriction on namaz till

he was offering it; he had never seen a puja performed inside the mosque.

In his cross-examination, the witness stated that when he ―came to his senses‖

(at the age of 10-11 years) he noticed that people frequently visited the disputed

property. He stated however that he did not use that way, so he could not say

whether there were any restrictions on people‘s movements. In his

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crossexamination, the witness stated that he passed the High School

examination in

1961 when he was 21 years old, and the certificate shows his date of birth as

1944. In his cross-examination, he admitted that his statement of age as 21 years

when he finished High School was due to some misunderstanding.

There is an evident discrepancy in the statement of PW-2 in relation to his age,

which casts a cloud of doubt on his testimony. If the year of his birth is 1944 as

stated in his High School certificate, it is difficult to believe that in 1949 when the

mosque was attached, a person who visited the mosque as a five-year old child

would have accurate recollections of a mosque he visited 47 years ago.

707. Farooq Ahmed (PW-3): The age of the witness was stated to be about ninety

years. The witness stated that he used to offer namaz at Babri Masjid. The witness

stated that whenever he heard the Azaan, while going to Faizabad or coming back, he

went for namaz, whatever be the time. He had last offered namaz in December 1949.

After being informed that there may be some trouble, was asked to lock the door. He

locked the door and kept the keys with him.

The witness stated in his cross-examination that he started offering namaz at the

age of 28 along with his father. The witness further stated that he has been

seeing people coming to offer namaz at the disputed property 10 years prior to

the incident of 22 December 1949. The witness stated in his cross-examination

that his father used to manage the mosque.

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In his cross-examination, the witness stated that it was Jumme-raat on 22

December 1949, when he went to offer prayer as it was a ‗Magrib Namaz‘ which

gives 27-fold blessings on reciting it. The witness stated that he also went to offer

namaz in a group, early morning. He participated in daily Magrib and Isha namaz.

He used to go to offer group namaz early morning at Babri Masjid. In

crossexamination, he stated that the last namaz called was Isha namaz, which

took place on around 20/22 December,1949. He further stated that the Moazzin

was sleeping on the floor when he went to lock the door. The witness clarified

that in his earlier statement, he had stated by mistake that he locked the middle

door.

He stated that he had put separate locks on both the doors.

The witness stated in his cross-examination that he had filed a petition to be a

party in the case in 1990. He further stated that he had seen the affidavit which

bears his thumb impression, but the signature does not belong to him.

Significantly, the witness stated that the age was written as 65, but he had mentioned an

approximate age.

In cross-examination, the witness admitted that in an application dated 18 March

1986, his age may have been recorded in the affidavit as 60 years:
―In my affidavit I got my age recorded as 60 years
approximately. At present my age is about 90 years. The
statement about my age is correct. The advocate may have
recorded my age in the affidavit approximately. My
applications, submitted in 1896 were rejected there only.‖

The statement of the witness was that he had started going to the mosque at the

age of twenty eight. If the approximate age of the witness as stated in the second

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affidavit (i.e. sixty years in 1986) is accepted, the witness would have been 28

years old in 1954. He categorically stated that he had commenced going to the

mosque for offering namaz at the age of twenty-eight. In that case, the witness

would have been unable to offer namaz at the mosque in 1954, when the mosque

was admittedly attached in 1949.

708. Mohd Yaseen (PW-4): The date of Examination-in-Chief of the witness was

17 October 1996. The age of the witness was stated to be 66 years. The witness

states that he read Jumme Ki Namaz in Babri Masjid. Significantly, the witness

states that he has been reading the Friday prayers at the spot continuously and has

not read any other namaz except Jumma Namaz at the disputed property. In his

cross-examination, the witness stated that he had started going to the mosque five

years before Independence. According to the witness‘s testimony, his father used to

go to Babri Masjid to offer Friday namaz. According to the witness, Friday namaz is

offered at big mosques in the city.

Before 1949, Friday namaz was either offered at Babri Masjid or at Keware wali mosque. He

states that 400-500 people used to offer Jumme ki Namaz at Babri Masjid. If the number

exceeded, then about 1000 people could offer namaz

together.

The witness has given descriptions of the disputed property as well as the rituals

performed there. During cross-examination, when the attention of the witness

was drawn towards the map in the suit of 1989, he stated that he had seen the

map, but did not know anything about the map and could not say anything about

it. The witness states that when India got Independence, he was 11-12 years old
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(then said that he was 17 years at that time). He stated that though his memory

has weakened, it does not mean that he is unable to remember old incidents.

709. Justice Agarwal has pointed out several contradictions in the statements of

PW-4 and the statements of other witnesses:

―2484. When his statement was found contradictory to the

statement of PW 1 who is plaintiff no. 7 in Suit-4 he justified
himself by stating that PW 1 must have given wrong
statement as is evident from the following:
―If Mr. Hashim has given any such statement that priests
used to sit under said thatched roof, then his
statement is wrong.‖
If Hazi Mahboob has stated that the recluses had surrounded
this place from one side for last 15-20 days, then his
statement is wrong.‖
―Mr. Zaki was the Mutwalli till the incident of 1949. Mr. Javvad
became Mutwalli after him…If Mr. Farooq has made any
such statement that Mr. Zahoor used to manage the mosque at
time of the incident, then the responsibility for its correctness or
incorrectness lies with him. I know only this much that the
mosque was managed by Mr. Zaki.‖
―If Mr. Hashim has given a statement that he had carried out tailoring
work only between 1966 to 1976, then it is his wrong statement.‖

In the light of his own admissions about his weak memory as well as other

contradictions, the contents of the affidavit filed by way of Examination-in-Chief

must be read with circumspection.

710. Abdul Rehman (PW 5): The age of the witness was stated to be 71 years.

The witness stated that he had recited the Holy Quran in Babri Masjid in 1945

and 1946. PW-5 is not a resident of Ayodhya and his village is 18-19 kilometers

away. The witness stated that he recited the Holy Quran in Ayodhya over two

continuous years. When he visited to recite the Holy Quran, he used to read

Friday namaz in Babri Masjid. In his cross-examination, the witness first stated

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that he does not recollect when he went to Ayodhya for the first time. Later, during

the course of cross-examination, the witness stated:

―When I went to recite Quran Sharif for the first time, it was
the 1st day of the month of Ramzan (then said he used to
reach there on 29th Shahban if the moon appeared and I
recited Quran Sharif on the same night.) I do not exactly
recollect which particular day (then said he reached Ayodhya
on 29th of Shahban).‖

The witness stated in his cross-examination that when he visited Ayodhya to

recite Quran Sharif, he stayed with his relative Hazi Pheku (father of PW-2) for

twelve days. The witness stated that on both the occasions when he visited

Ayodhya, it was summer and he could not enter the building to recite the Holy

Quran due to the intense heat. The outer courtyard was used to recite the Holy

Quran. The witness also stated that inside the Masjid, he recited Quran Sharif in

the second inner courtyard. The witness stated that he had offered namaz in

Babri Masjid once a day.

The witness stated in his cross-examination that he went to Ayodhya to recite the

Holy Quran for the first time during British rule. He further stated in his

crossexamination that besides these two occasions when he recited the Holy

Quran for twelve days, he has never visited Babri Masjid. In 1946, when he went

to recite Quran Sharif, he started at 9 pm and about 80-100 people used to come

to

listen.

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The witness stated in his cross-examination that he cannot tell the year of his visit

to the masjids where he has read the Holy Quran and it will be guesswork. The

testimony of the witness on the offer of namaz does not throw light on when in

point of time namaz was being offered. In the absence of an approximate

reference to the year or years when he prayed at the mosque, the evidence has

to be read with this caveat.

711. Mohd. Unis Siddiqi (PW-6): The date of the Examination-in-Chief of the

witness is 28 November 1996. The age of the witness was stated to be 63 years.

The witness was enrolled as an advocate on 9 July 1955 in Lucknow. The

witness states that he went inside Babri Masjid for the first time with his elder

brother, when he was 12-13 years old in the night of Shabe-raat. He states:

―After that I used to go to the Masjid in the night of every

Shab-e-raat. I have been to the mosque during day time also.
I have offered Namaz only once during day time but have
offered Nafle on the occasion of Shabe-raat. I had offered
Namaz during the day time on the same day, when statues
were placed there. Before that Namaz was offered in group
on Jumma (Friday)‖

In cross-examination, he admitted that he had been involved in the present suit

but stated that he was only engaged as a stand-by by the plaintiffs in the suit. He

did not get an opportunity to see the papers related to the case before 1961. The

witness stated that he has never seen Hindu worship there before 1949. With

regard to his memory, the witness made the following admission in

crossexamination:

―…my memory is weak. This weakness has started since

1986. It is correct that now I sometimes forget the names
of my sons also. I have 5 sons, I recognize them. From that
very time i.e. from 1987 my vision has weakened. I was hurt
in my head at that time.‖

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(Emphasis supplied)

712. Hasmat Ullah Ansari (PW-7): The date of the Examination-in-Chief of the

witness was 5 December 1996. The age of the witness was stated to be about 65

years. The witness stated that he was born at Ayodhya in 1932. He stated that

his date of birth is mentioned as 8 January 1934, but it is wrong. With respect to

his date of birth, the witness made the following statement in his

crossexamination:

―When I got a certificate from the Phofas College on

completion of my education, I came to know that my date of
birth was wrongly mentioned. I have not taken any steps to
rectify the mistake.‖

The witness has stated his age as 65 in 1996 and in accordance with that, his

year of birth would be 1931. He stated that he has offered namaz at Babri Masjid

hundreds of times and he had first offered namaz in 1943. The witness stated

that a week before the placement of idols, he had been regularly offering namaz

there. He stated in his cross-examination:

―I did not offer namaz at this mosque on 22nd

December,1949. I had not offered namaz there even on 21st
December, 1949 too. I have corrected my statement that I had
been rarely offering namaz there up to a week before the
placing of the idol there. I did not offer all the five Namazes
there but certainly offered Namaz of Asar.‖

The witness stated that namaz was offered at the disputed property prior to 22

December 1949. The witness stated that Jumma Namaz as well as namaz of all

five times was also offered at this mosque. During Ramzan, Tarabi Namaz was

offered at Babri Masjid. Until 22 December, the witness states that he had not

seen any idol in the Masjid nor did he see anyone worshipping there. He stated

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that he did not see any Hindus going there for worship. In his cross-examination,

the witness stated that he had been offering namaz regularly at the masjid. When

he offered namaz for the first time in 1943, he was 11-12 years old.

The witness stated in his cross-examination that two days before the placement

of idols, he had performed namaz of Asar and 8-10 people were present. Before

offering the namaz of Asar, had offered Jumma Namaz wherein 400-500 people

were present. The witness gave a detailed description of the disputed property in

his cross-examination.

713. Shri Abdul Aziz (PW-8): The date of the Examination-in-Chief was 20

January 1997. The age of the witness was stated to be 70 years. The witness

states that he was born in 1926 and must have been about 10 years old when first

offered namaz at the mosque. He states that he has offered namaz hundreds of

times. The witness states that he has offered ―Friday Namaz‖, ―Johar Namaz‖,

―Asar Namaz‖ and ―Namaz of Shabe-raat‖ at the mosque. The witness states that

the offering of namaz was discontinued after an idol was placed there in 1949.

In his cross-examination, the witness stated that he had offered the last namaz

on the Friday immediately before 22 December. Had also offered the namaz of

Shabe-raat in this mosque after two-three years of offering the first namaz in the

mosque. According to the witness, until Independence, he had been offering

namaz for the previous 13-14 years.

714. Shri Saiyad Akhlak Ahmed (PW-9): The age of the witness was stated to

be about 60 years. The witness stated that he offered Jumma namaz and the
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Panchwakti namaz at the mosque. Maulana Abdul Ghaffar was the Imam of Babri

Masjid and Mian Ismail was the Moazzin. He stated in his cross-examination that

as far as he remembers, the first namaz he offered at the mosque was after

Independence and it was Namaz-e-magrib. He stated in his cross-examination

that he had gone to offer namaz at the mosque five or six days before 22-23

December, 1949. The number of persons present could be 200 to 400, or even

500. According to the witness‘s statement in his cross-examination, he would

have been 13-14 years old when he had gone to offer Namaz-e-magrib for the

first time. He further stated that when he offered his last Namaz-e-jumma in the

mosque, he was 14 years old. Though the witness stated that he had offered

namaz after 1947, he could not state even the approximate period during which

namaz was offered. Justice Agarwal noted that the witness was unable to

recollect events from memory.

715. Jaleel Ahmed (PW-14): The date of Examination-in-Chief of the witness was

16 February 1999. The age of the witness was stated to be 78 years old. The witness

stated that he has offered namaz at Babri Masjid. In his crossexamination, it emerged

that Ayodhya is at a distance of 2 kms from his house. The witness stated that he has

offered both Isha and Jumma Namaz at the Masjid. According to his statement, the

witness looks after the Jinnati Masjid located at Mohalla Nivava at Faizabad. The

witness stated in his crossexamination that he last offered namaz at Babri Masjid at

the age of 24-25. He stated that he had offered Juma Namaz at the disputed site on

several occasions. He stated that he did not offer Tarabi Namaz at the disputed site.

In his cross-examination, the witness gave a description of the disputed property.

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In his cross-examination, the witness stated that he is about 78 years old and

cannot tell how long he has been offering namaz before the placing of the idol

and offering of Juma Namaz. He stated that he cannot tell if it was two months or

the last five to six years since he was offering namaz at the disputed property. He

further stated that he had offered Isha Namaz at the disputed site once.

716. Dr Hashim Qidwai (PW-21): The date of Examination-in-Chief of the witness

was stated to be 22.11.01. The age of the witness was stated to be about

80 years. The witness stated that he visited Faizabad for the first time in

December 1939, when his father was posted at Faizabad. That month, he went to

see the Babri Masjid with members of his family and performed Magrib Namaz at

the site. The witness stated that upto 1941, he used to go to Faizabad every

vacation. In October 1941, the father of the witness was transferred to Lucknow

as Additional City Magistrate. The witness stated that during the period, he

offered Magrib-ki- Namaz 15-20 times, Aasir Namaz 4 to 5 times and Friday

Namaz 2-3 times in the mosque. About 100 persons attended the Magrib-

kiNamaz, 40-50 persons attended the Aasir Namaz and about 250-300 persons

performed Jumma Namaz. The witness stated that In 1984, he was elected as a

member of the Rajya Sabha and remained a Member of Parliament for six years.

He stated in his cross-examination that when he went to offer namaz for the first

time in 1939, he did not make any specific enquiry with regard to the damaged

portions of the mosque. He stated that it was 27 December, 1939 when he had

first gone to the disputed structure. The witness later stated that when he went to

the disputed property for the first and second time, he saw every part of the
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building, inside and outside. He gave a detailed description of the domes and

pillars present. He stated that namazis were present in the domed structure as

well as courtyard.

In his cross-examination, the witness stated that he could not go to Faizabad or

Ayodhya since May 1941. Between December 1939 and May 1941, he was not

permanently living at Faizabad and used to go there intermittently during

vacations. In cross-examination, the witness stated that he has seen the disputed

property from outside and inside, but cannot tell about the boundary in detail,

since a long period of 60-62 years had elapsed.

717. Mohd. Qasim Ansari (PW-23) (Brother of PW-1): The date of the

Examination-in-Chief was 16 January 2002. The age of the witness was stated to

be 74 years. The witness stated that he had knowledge of the disputed property,

which was located at a distance of 3 furlongs from his house. The witness stated

that he had recited namaz at the mosque for about 8-9 years. He had recited the

namaz of Fazir Zohar, Asir, Magrib, Isha and Tavri. He stated that he had recited

namaz for the last time on 22 December, 1949 when he recited the Isha Namaz.

He stated that four years after the placing of idols, the Muslims gave a notice to

the government that they would perform a farewell namaz there. When they went

to perform the farewell namaz, the police stopped and arrested them. Stated in

the cross-examination, when he went to recite namaz for the first time, he was in

the first grade.

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In his cross-examination the witness stated that the disputed site is a waqf, but he

has no knowledge about who the waqif of the mosque is. In his

crossexamination, the witness stated that he had performed Isha Namaz at the

disputed mosque on 22 December, 1949 at about 7:30 pm. Later he stated that

he could not tell when he recited namaz for the last time at the disputed structure.

It is of relevance to refer to the observations of Justice Agarwal with respect to the

statements of PW-23. He noted the following statement made by PW-23:

―Farooq was with me when I had gone to offer Isha namaz

at the disputed structure for the last time…I was also
accompanied by Hashmat Ullah at the ‗Isha‘ namaz offered
on 22nd December, 1949.‖

Justice Agarwal noted that the statement was not corroborated by Farooq (PW-3) and

Hashmat Ullah (PW-7).

PW-3 had stated:

―Rahman Saheb and Unus Saheb were with me at the Isha namaz
on 22nd December, 1949.‖

PW-3 therefore, did not corroborate the statement of PW-23.

PW-7 had stated thus:
―I had for the last time offered namaz at the mosque two days
before the incident in which the idol was placed there.‖

―I did not offer namaz at this mosque on 22nd December,

1949.‖

―I did not offer namaz there on 22nd December, 1949 as well.‖

718. Sibte Mohd Naqvi (PW-25): The date of Examination-in-Chief of the witness was 5

March 2002. The age of the witness was stated to be 76 years.

The witness had seen the structure from afar. He stated that he had been visiting

Ayodhya since 1948 and had seen namazis going to Babri Masjid. The witness

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stated that he had not seen anyone performing namaz at the disputed property.

Since the witness has not himself visited the disputed property or actually seen

anyone perform namaz at the site, the evidence tendered by PW-25 is hearsay.

The evidence of some of the witnesses deposing for the plaintiff in Suit 4 have

contradictions and inconsistencies as noted earlier. The court must however

assess the staements in a robust manner, making due allowance for the normal

failings of memory. Many of the statements in the affidavits filed by the witnesses

in their Examination-in-Chief have sweeping claims and generalisations which are

not validated during the course of cross-examination. Assessing the statements it

cannot be concluded that namaz was not being offered at all at the disputed

property. The oral statements in evidence have to be evaluated with the

documentary evidence. The report dated 10 December 1949 of Muhammad

Ibrahim, Waqf Inspector notes:

―It came to my knowledge that the fear of Hindus and

Sikhs, no person offers prayers in the mosque. If any
person stays back in the mosque during night he is very much
harassed by Hindus. There is a temple of the Hindus outside
the courtyard where many Hindus live. They abuse any
Muslim who goes to the Masjid. I visited the site and on
enquiry found that whatever is stated above is correct. People
also said that there is danger to the mosque from Hindus in
the form of weakening its walls. It appears proper to submit in
writing to the Deputy Commissioner, Faizabad that Muslims
offering prayers in the mosque should not be harassed…
‖
(Emphasis supplied)

The report indicates that the offering of prayers by the Muslims at the mosque

was being obstructed by the Hindus and Sikhs and no namaz was being offered.

There is another report dated 23 December 1949 of the Waqf Inspector, who

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stated that he had gone to inquire into the condition of the Babri Masjid and

Qabrastan on 22 December 1949. He noted that it had been three months since

Baba Raghunath‘s visit to the Janmasthan; a month after his departure,

thousands of Hindus, pujaris and pandits gathered there for Ramayan Path. It

was stated in the report:

―…Now the Masjid remains locked. No azaan is allowed

nor Namaaz performed except on the day and time of
Jumaah. The lock and the keys remain with Muslims. But
the police does not allow them to open the lock. The lock is
opened on the day of Jumaah, i.e. Friday for two or three
hours. During this period, the Masjid is cleaned and Jumaah
prayers are offered. Thereafter it is locked as usual…It is
Jumaah-Friday-today…‖
(Emphasis supplied)

The report of the Waqf Inspector belies the claim of several witnesses that they

had offered namaz on 22 December 1949. It is stated in the above report that 23

December 1949 was the day of Jumma. It can be reasonably concluded that the

last Jumma namaz must have been held on Friday, 16 December 1949. There is

evidence on record to hold that Muslims offered Friday namaz at the mosque and

had not completely lost access to or abandoned the disputed property.

O.9 Placing of idols in 1949

719. On the night intervening 22/23 December 1949, about fifty to sixty persons

belonging to the Hindu community placed idols below the central dome of Babri

Masjid. The events preceding and following upon this incident are set out below:

(i) The posting of a police picket on 12 November 1949;

(ii) A letter dated 29 November 1949 of the Superintendent of Police,

Faizabad to K K Nayar, Deputy Commissioner and District Magistrate

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apprehending that Hindus were likely to force an entry into the mosque

with the object of installing the idols of the deity;

(iii) A report dated 12 December 1949 of the Waqf Inspector that Muslims were

being harassed by Hindus when they sought to pray in the mosque;

(iv) A communication dated 6 December 1949 of the Deputy Commissioner

and District Magistrate to the Home Secretary, Government of Uttar

Pradesh requesting the State Government not to give credence to the

apprehensions of the Muslims regarding the safety of the mosque;

(v) The lodgment of an FIR after the incident of 22/23 December 1949;

(vi) A letter dated 26 December 1949 of K K Nayar to the Chief Secretary

expressing surprise over the incident which had taken place. The District

Magistrate declined to carry out the orders of the State Government to

have the idols removed from the mosque;

(vii) A letter dated 27 December 1949 of K K Nayar stating that he would not be

able to find any Hindu who would undertake the removal of the idols and

proposing that the mosque should be attached by excluding both the

Hindus and Muslims with the exception of a minimum number of pujaris

and parties should be referred to the civil judge for adjudicating of rights; and

(viii) The passing of a preliminary order under Section 145 on 29 December

1949 in pursuance of which the receiver took charge on 5 January 1950

and made an inventory of the attached property.

The Sunni Central Waqf Board contended in para 11 of their plaint in Suit 4 that

on 23 December, 1949, the mosque was desecrated by the installation of idols of

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Lord Ram under the central dome of the mosque. The plaintiffs in Suit 4 and 5 did

not dispute that the idols of the deity were placed within the central dome during

the intervening night of 22/23 December, 1949. Nirmohi Akhara however, denied

the occurrence of the event to suggest that the idols were always present below

the central dome of the mosque.

The following issues were framed by the High Court in Suits 1, 4 and 5:

In Suit 1, Issue 2 reads:

―Are there any idols of Bhagwan Ram Chandra Ji are his Charan
Paduka situated in the place of suit?‖

In Suit 4, Issue 12 reads:

―Whether idols and objects of worship were places inside

the building in the night intervening 22 nd and 23rd December,
1949 as alleged in paragraph 11 of the plaint or they have
been in existence there since before? In either case, effect?

In Suit 5, Issue 3A reads:

―3(a) Whether the idol in question was installed under the

central dome of the disputed building (since demolished) in
the early hours of December 23, 1949 as alleged by the
plaintiff in paragraph 27 of the plaint as clarified in their
statement under Order 10 Rule 2 CPC.‖

Justice S U Khan and Justice Sudhir Agarwal held that the idols were placed

under the central dome of the disputed structure within the inner courtyard during

the intervening night of 22/23 December, 1949. Justice DV Sharma also held that

Nirmohi Akhara had failed to establish that the idols had been in existence under

the central dome prior to the intervening night of 22/23 December 1949.

In Suit 1, a written statement was filed by defendant nos 1 to 5, where it was

pleaded in paragraph 22 that untill 16 December, 1949 when namaz was offered,

no idol existed under the central dome. In the written statement filed by defendant

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No 6, it was stated that the idols of Lord Ram were surreptitiously and wrongly

installed in the mosque on the night of 22 December 1949.

In Suit 4, defendant nos 1 and 2 filed their written statements denying that the

plaintiffs in Suit 4 were in possession of the disputed site. It was stated that

assuming the plaintiffs had possession, this ceased in 1934, after which the

defendants have been in settled possession. In the written statement filed by

defendant nos 3 and 4 (Nirmohi Akhara and Mahant Raghunath Das

respectively), the averment in paragraph 11 of the plaint in Suit 4 was denied. It

was contended that the plaintiffs in Suit 4 have wrongly referred the building as

Babri mosque whereas it has always been the temple of Janmabhumi where

idols of Hindu Gods were installed. The relevant extract reads:

―11. That the contents of para 11 of the plaint are totally false
and concocted. The alleged mosque never existed nor does it
exist even now and the question of any Muslim or the Muslim
community having been in peaceful possession of the same
and having recited prayers till 23.12.1949 does not arise. The
building which the plaintiffs have been wrongly referring as
Babari Mosque is and has always been the Temple of Janam
Bhumi with idols of Hindu Gods installed therein. The plaint
allegation regarding placing of idols inside any mosque is a
pure falsehood.‖

In Suit 5, para 27 of the plaint states:

―…Ultimately, on the night between the 22 nd 23rd December,

1949 the idol of Bhagwan Sri Rama was installed with due
ceremony under the central done of building also.‖

In his statement under Order 10 Rule 2 of the CPC recorded on 30 April, 1992, plaintiff

No 3 in Suit 5 stated:

―In the early hours of December 23, 1949, the idol of

Bhagwan Sri Ram Lal, which was already on Ram Chabutra
was transferred to the place where he presently sits, that is,

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under the central dome of the disputed building. I was not

personally present at that time at the place. This information
was conveyed to me by the Paramhans Ram Chandra Das of
Digamber Akhara. This transfer of the idol was done by
Paramhans Chandra Das and Baba Abhi Ram Das and
certain other persons whose names I do not remember the
moment…‖

With regard to the witnesses who were examined on behalf of the plaintiffs of Suit

4, the High Court recorded that none of the witnesses were present on the spot at

the relevant time. Hence, their statements would not be relied upon for a

determination on this issue. OPW-1 and OPW-2 who appeared on behalf of the

plaintiffs in Suit 5 had, in their statement, stated that the idols were shifted from

the Ramchabutra on 22/23 December 1949. OPW-1 (Mahant Paramhans

Ramchandra Das) in his statement stated that the idols were placed on 23

December 1949 after being removed from the platform:

―The place termed as ‗Garbh-grih (sanctum sanctorum) by

me, is the birthplace of Ramchandra according to my belief
and all the Hindus. The very place where the idols were
placed on 23 December 1949, after being removed from the
platform, is considered as Janmsthan by me and even before
installation of the idols, that place was considered Janmbhumi
by me.‖

The statement of OPW-2 was to a similar effect.

The witnesses who have been examined on behalf of Nirmohi Akahra supported

the case that the idols were present under the central dome prior to the

intervening night of 22/23 December, 1949. The plaintiffs in Suit 3 examined 20

witnesses (DW - 3/1 - DW. 3/20). DW-3/1 (Mahant Bhaskar Das) stated that no

incident occurred in the intervening night of 22/23 December 1949. He further

stated that he was sleeping in the premises on that date.

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The statements made by DW 3/1 have been examined and rejected in another

part of this judgment. The explanation of the witness that he was asleep in the

disputed premises on 22/23 December 1949 and that no incident had taken place

is a figment of his imagination.

On the night of 22 December 1949, the idols of Lord Ram were placed inside the

mosque imperilling. Acting on an FIR, the Additional City Magistrate,

Faizabadcum-Ayodhya issued a preliminary order under Section 145 on 29

December 1949, treating the situation to be of an emergent nature.

Simultaneously, an attachment order was issued and Priya Datt Ram, the

Chairman of the Municipal Board of Faizabad was appointed as the receiver of

the inner courtyard. On 5 January 1950, the receiver took charge of the inner

courtyard and prepared an inventory of the attached properties.

The stance of the plaintiffs in Suit 4 and 5 and the statements of the witnesses on

record belie the claim of the Nirmohi Akhara that the idols existed under the

central dome prior to the incident of 22/23 December 1949. It was following this

incident, that the property was attached. On a preponderance of probabilities

which govern civil trials, the finding of the High Court that the idols of the deity

were installed in the intervening night of 22/23 December 1949 commends itself

for our acceptance.

720. Dr Dhavan‘s assertion of the claim of the Sunni Central Waqf Board to the

disputed site is based on the Janmasthan temple of the Hindus being outside the

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courtyard and the offering of namaz by the Muslim in the mosque. The

submission that the temple of the Hindus ―was outside the courtyard‖ is

ambiguous and contrary to the evidence. If the expression ―courtyard‖ is used to

denote both the inner and outer courtyards, the submission is belied by the fact

that there was a consistent pattern indicating possession and worship by the

Hindus at the outer courtyard after the setting up of the railing in 1856-7. The

offering of worship at Ramchabutra which was situated in close proximity to the

railing coincided with the attempt by the colonial administration, post the

communal incident of 1856-7, to conceive of the railing as a measure to maintain

peace and order. The extensive nature of worship by the Hindus is indicated by

the existence of specific places of worship and the permission by the

administration for the opening of an additional point of entry in 1877 due to a

large rush of devotees. In the face of a consistent pattern of worship by the

Hindus in the outer courtyard after 1856-7, the documentary material does not

indicate either settled possession or use of the outer courtyard by the Muslims

(except for the purpose of gaining access to the mosque). The presence of the

Hindus in the outer courtyard and their occupation was not merely in the nature of

a prescriptive right to enter for the purpose of worship. On the contrary, the

occupation and possession of the Hindus is evident from: (i) the exclusive

presence of Hindu places of worship in the disputed property which lay beyond

the railing; (ii) evidence of worship by the Hindus at these places of worship; (iii)

recognition by the administration of the need to open an additional entry gate on

the northern side occasioned by the large presence of devotees; (iv) absence of

any evidence to indicate that the Muslims had asserted any right of possession or

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occupation over the area of the disputed property beyond the railing; (v)

occurrence of incidents during which the use of the mosque inside the railing

became contentious; (vi) report of the Waqf Inspector complaining of Muslims

being obstructed in proceeding to the mosque for namaz; (vii) access to the outer

area of the disputed property beyond the railing being exclusively with the

Hindus; and (viii) the landlocked nature of the area inside the railing.

721. In so far as the inner courtyard is concerned, it appears that the setting up

of the railing was a measure to ensure that peace prevailed by allowing the

worship of the Muslims in the mosque and the continuation of Hindu worship

outside the railing. In so far as the worship by the Muslims in the inner courtyard

is concerned, the documentary material would indicate that though obstructions

were caused from time to time, there was no abandonment of the structure of the

mosque or cessation of namaz within.

722. In order to determine the question of title one needs to analyse the nature

of the use of the disputed premises by both Muslims and Hindus.

O.10 Nazul land

723. Before the High Court, it was not disputed by the litigating parties that the plot of

land in which the disputed structure existed was recorded as Nazul land

(i.e. land which is owned by the government), bearing plot No. 583, Khasra of

1931 of Mohalla Kot Ram Chandra known as Ram Kot, City Ayodhya, Nazul

Estate Ayodhya. The number of the plot in which the disputed structure was

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situated was not disputed and it was admitted that the plot was recorded as

Nazul land in the first settlement of 1861 and continued as such on the date of

the institution of the suit.

724. In fact, in paragraph 24(B) of the written statement of the UP Sunni Central Board

of Waqf in Suit 5, it has been stated:

―The land in question undoubtedly belonged to the State

when the mosque in question was constructed on behalf of
the State and as such it cannot be said that it could not be
dedicated for the purposes of the mosque.‖

Justice Sudhir Agarwal has traced the historical context by referring to two orders issued

under the authority of the Lt. Governor of the North-Western provinces in

October 1846 and October 1848 wherein, after the words of ‗Nazul property‘ its

English meaning was indicated as ―escheats to the government‖. On 20 May

1845, the Sadar Board of Revenue issued a circular order in reference to Nazul

land stating:

―The Government is the proprietor of those land and no valid title

to them can be derived but from the Government.‖

725. Under the circular dated 13 July 1859 issued by the Government of

NorthWestern Provinces, every Commissioner was required to maintain a final

confiscation statement of each district and to present it before the government for

orders. The Kingdom of Oudh was annexed by the East India Company in 1856.

After the revolt broke out in May 1857, a substantial area of the North Western

Provinces vested in the Government. As a consequence of the failure of the

revolt, Lord Canning as the Governor General issued a proclamation on 15 May

1858 confiscating proprietary rights in the soil with the exception of 5 or 6

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persons who had supported the colonial government. This land was initially

resettled for three years and then permanent proprietary rights were given to

talukdars and zamindars by the grant by sanad under the Crown Grants Act. With

effect from 1 November 1858, the entire territory under the control of the East

India Company was placed under the British Crown. In the first settlement of

1861, the land in dispute was shown as Nazul, a status which was continuously

maintained.

726. Sri Ram Sharan Srivastava (DW 2 /1-2), who was the Collector at Faizabad

between July 1987 and 1990 has deposed in the following terms:

―The records of three revenue settlements of year

1861,189394 &1936-37 were available in the revenue record
room under me. These records included khasra, khatauni,
khewat and the reports of the three settlements were
available separately besides them. The survey report of 1931
in respect of nazul land, was also included besides the three
settlements and reports. The khasra, khatauni & khewat
prepared on basis of survey of 1931, were also available. In
the records of all the three settlements and the nazul survey,
the disputed site has been mentioned as Janmsthan and at
places Ramjanmbhumi has also been mentioned.‖

The witness further stated:

―The numbers of the last settlement were 159, 160 and

160A, which I do not remember. Janamsthan was written
against all these numbers. The plot number changes in every
settlement. The plot numbers 159 and 160 given by me, were
the numbers of the last settlement. The numbers concerned
to it in the Nazul survey were 583, 586, which are within my
memory.‖

He then made a reference to certain interpolations in the record as follows:

―In no number of the records of first and second settlement,

there was any mention of mosque, royal mosque or
Janmsthan mosque. In certain records of khasra, khatauni &
khewat of the third settlement, there were interpolations and
Janmsthan Masjid or Jama Masjid were interpolated in certain

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numbers of the disputed site. I had sent its report. I had sent
this report in the behalf to the Board of Revenue in 1989. An
enquiry was held on my report. Some officer of Board of
Revenue had come. The investigator was an officer
subordinate to the Secretary, Board of Revenue and was not
a member. The records in which interpolation had been made
and whose report I had submitted, were never corrected
because the matter was pending in Court.‖

727. There can be no dispute about the status of the land as Nazul land.

However, while recording this, it is necessary to bear in mind that the state

government indicated during the course of the trial before the High Court that it

was not asserting any interest in the subject matter of the dispute and was not

contesting the suit. It was in these circumstances that the High Court held that

though the land is shown to be continued as Nazul plot No. 583 of the Khasra of

the year 1931 of Mohalla Kot Ramchandra, it would effectively not impact upon

the claims of the two communities each of whom has asserted title to the land.

O.11 Waqf by user

728. The documentary evidence relied upon by the plaintiffs in Suit 4 to

demonstrate that the mosque stood on dedicated land originates after the

colonial annexation of Oudh and after the year 1856. This was fairly admitted by

Dr Dhavan, learned Senior Counsel appearing in behalf of the plaintiffs in Suit 4.

The plaintiffs in Suit 4 were unable to establish a specific grant of the land as a

foundation of legal title prior to the annexation of Oudh or upon the transfer of

power to the colonial administration after 1857.

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729. An attempt was made at an advanced stage of the hearing to contend that

the disputed site marked out by the letters A B C D is waqf property, not by virtue

of a specific dedication, but because of the long usage of the property as a site of

religious worship by the Muslim community. Dr Dhavan, learned senior counsel

appearing on behalf of the plaintiffs in Suit 4 contended that the concept of a

waqf has a broad connotation in Islamic Law. Hence, it was urged that even in

the absence of an express dedication, the long use of the disputed site for public

worship as a mosque elevates the property in question to a ‗waqf by user‘.

To support this proposition, Dr Dhavan contended that since the construction of

the mosque by Emperor Babur in 1528 till its desecration on 22/23 December

1949, namaz has been offered in the mosque. Hence, the disputed property has

been the site of religious worship. Further, he urges that the Muslims have been

in settled possession of the disputed property and had used the mosque for the

performance of public religious worship. Thus, despite the absence of a deed of

dedication, the disputed site has been used for public religious worship for over

four centuries, resultingly constituting its character as waqf property by long use.

730. This contention raises two points for determination: First, whether the

notion of a waqf by user is accepted as a principle of law by our courts; and

second, as a matter of fact, whether its application is attracted in the present

case.

Pleadings in Suit 4
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731. In the first paragraph of the plaint, the plaintiffs set up the case that on its

construction in 1528 AD by or at the behest of Babur, the mosque was dedicated

as a site of religious worship for the Muslims to offer namaz:

―1. That in the town of Ajodhiya, pargana Haveli Oudh there

exists an ancient historic mosque, commonly known as Babri
Masjid, built by Emperor Babar more than 443 years ago, after
his conquest of India and his occupation of the territories
including the town of Ajodhiya, for the use of the Muslims in
general, as a place of worship and performance of religious
ceremonies.‖

There being no specific document to establish a dedication, the plaintiffs, during

the course of submissions, fall back upon the pleading in regard to long use of

the mosque as a site for religious worship. In paragraph 2 of the plaint, the

pleading is as follows:

―2. That in the sketch map attached herewith, the main construction of the
said mosque is shown by letters A B C D and the land adjoining the mosque
on the east, west, north and south, shown in the sketch map attached
herewith, in the ancient graveyard of the Muslims, covered by the graves of
the Muslims, who lost the lives in the battle between emperor Babr and the
previous ruler of Ajodhiya, which are ahown in the sketch map attached
herewith. The mosque and the graveyard is vested in the Almighty. The said
mosque has since the time of its construction been used by the Muslims
for offering prayers and the graveyard are in Mohalla Kot Rama Chander
also known as Rama Kot Town, Ayodhya. The Khasra number of the mosque
and the graveyard in suit are shown in the schedule attached which is part of
the plaint.‖

(Emphasis supplied)

732. A waqf is a dedication of movable or immovable property for a religious or

charitable purpose recognised by Muslim law. Ordinarily, a waqf is brought into

existence by an express act of dedication in the form of a declaration. Upon

pronouncing the declaration, the property sought to be dedicated is divested from

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the wakif as the person making the dedication and vests in the Almighty, Allah. A

waqf is a permanent and irrevocable dedication of property and once the waqf is

created, the dedication cannot be rescinded at a later date. The property of a

validly created waqf is inalienable and cannot be sold or leased for private gain.

733. Muslim law does not require an express declaration of a Waqf in every

case. The dedication resulting in a waqf may also be reasonably inferred from the

facts and circumstances of a case or from the conduct of the wakif. In the

absence of an express dedication, the existence of a waqf can be legally

recognised in situations where property has been the subject of public religious

use since time immemorial. This concept of a waqf by user has also found

statutory recognition in Section 3(r) of the Waqf Act, 305 1995 which defines a

―waqf‖ as:

―(r) ―waqf‖ means the permanent dedication by any person, of

any movable or immovable property for any purpose recognised
by the Muslim law as pious, religious or charitable and includes –

(i) a waqf by user but such waqf shall not cease to be

a waqf by reason only of the user having ceased
irrespective of the period of such cesser;

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by

any other name entered into a revenue record;

(iii) ―grants‖, including mashrat-ul-khimdat for any

purpose recognised by the Muslim law as pious,
religious or charitable; and

(iv) a waqf-alal-aulad to the extent to which the property is

dedicated for any purpose recognised by Muslim law
as pious, religious or charitable, provided the then the
line of succession fails, the income of the waqf shall
be spent for education, development, welfare and
such other purposes as recognised by Muslim law,

and ―waqif‖ means any person making such dedication‖

305 Title changed from ‗Waqf Act‘ to the ‗Auqaf Act‘ by virtue of the Waqf (Amendment) Act 2013

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(Emphasis supplied)

The statutory definition of a waqf recognises the validity of a waqf established by use

and not by dedication. Similarly, Mulla in his book on ―Mahomedan Law‖

states:

―…if land has been used from time immemorial for a

religious purpose, e.g., for a mosque, or a burial ground or for
the maintenance as a mosque, then the land is by user wakf
although there is no evidence of an express dedication‖.306

In his submissions on waqf by user, Dr Dhavan has adverted to several

authorities that establish the contours of the doctrine of waqf by user.

734. The doctrine of waqf by user received judicial recognition in the decision of

the Privy Council in The Court of Wards for the property of Makhdum

Hassan Bakhsh v Ilahi Bakhsh.307 The case concerned a public graveyard in

Multan where a prominent Muslim saint was buried. The Court of Wards, acting

for the property of Makhdum Bakhsh, proposed to sell certain property within the

area of the graveyard on which no graves existed. The Muslim residents of

Multan sought an injunction restraining the proposed sale on the ground that the

entire graveyard was inalienable waqf property due to its long use as a public

graveyard of the Muslim community. Lord Macnaghten held:

―Their Lordships agree with the Chief Court in thinking that the
land in suit forms part of a graveyard set apart for the
Mussulman community, and that by user, if not by dedication, the
land is Waqf.‖

306 Mulla‘s Mahomedan Law, 14th Edition at page 173

307 ILR (1913) 40 Cal 297

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The Privy Council recognised that absent an express deed or act of dedication, a waqf

can be recognised by long use.

735. The above decision was followed by the Oudh Chief Court in Abdul

Ghafoor v Rahmat Ali.308 The plaintiffs sought a declaration that the suit property

was a public graveyard and the defendant was not entitled to construct any

structure on it. The graveyard in question had been closed to the public by

the Municipal Board for forty years. The defendant argued that the plaintiffs had not

established the use of the graveyard till the suit in question, and that by nonuse for forty years,

it had lost its characteristic as a waqf. In holding that the graveyard continued to be a public

waqf, Justice Srivastava, speaking for the Oudh Chief Court held:

―4. … It is well settled that a wakf may, in the absence of

direct evidence of dedication, be established by evidence of
user. The land in suit was recorded at the time of the first regular
settlement as a qaburistan but there is no direct evidence to
establish the dedication. … in light of the evidence of a number
of witnesses examined on behalf of the plaintiffs, whose
evidence he [the Subordinate Judge] has believed has come to
the conclusion that the Mohamedan public used the land as their
burial ground until the Municipal Board prohibited further
interments in that land about 40 years ago. Thus, in the present
case, the finding about the land in suit being a public
graveyard is based upon the evidence of long user… The
rule which allows evidence of user to take the place of
dedication is a rule of necessity. In the case of old wakf it is
not possible to secure direct evidence of dedication and
also it has been ruled that even in the absence of such
direct evidence, a Court can hold a wakf to be established
on evidence of long user…‖

(Emphasis supplied)

308 AIR 1930 Oudh 245

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736. In some cases, courts were faced with a situation where property was

used as waqf property since time immemorial and it was not practical to seek

formal proof in the form of a deed of declaration. A specific document of

dedication may be unavailable after a long lapse of time but the use of the

property for public religious or charitable purpose may have continued since time

immemorial. Hence, despite the absence of an express deed of dedication,

where the long use of the property as a site for public religious purpose is

established by oral or documentary evidence, a court can recognise the

existence of a waqf by user. The evidence of long use is treated as sufficient

though there is no evidence of an express deed of dedication.

737. In Miru v Ram Gopal309 the plaintiff was a zamindar of the property. One

Rahim Baksh had occupied the property and built a makeshift or ‗katcha‘

platform for offering prayers. As of 1904, prayers were being offered by local

Muslim residents at this ‗katcha‘ mosque. The Muslim residents, who were the

defendants sought to build a permanent structure of a mosque at the site. This

was resisted by the plaintiff, who sought an injunction for restraining construction

of the new mosque. The court observed that the khasra for the plot stated,

―masjid‖. Justice Bennet, speaking on a Division Bench of the Calcutta High Court,

stated:

―…[In] The present case there is a finding that the plot has
long been used for a mosque and that the use has been by
the Muhammadan inhabitants of the locality and not merely
by a particular tenant who allowed other people to come there for
the purpose of prayer…

It has also been held by their Lordships of the Privy Council in

the case of the Court of Wards v. Ilai Bakhsh (2) that a graveyard
by user became wakf. We do not think that the provisions of the
309 AIR 1935 All 891

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Easement Act or of any part of chapter IV in regard to license

apply where a zamindar allows the Muhammadan population to
use a building as a mosque. … In such a case we consider
that where there is a finding that a mosque exists, this
necessarily implies that there is no longer any question of
easement or use of license. Under Muhammadan law, the
mosque is the property of God and not the property of the
zamindar. Learned counsel for the plaintiff objected that there
was no case of a transfer as is necessary for transfer of property,
but we consider that consent of the zamindar to use of a building
as a mosque is sufficient.‖

(Emphasis supplied)

The long use of the ‗katcha‘ mosque led the court to recognise the existence of a

public waqf. This was not a case involving a few isolated instances of worship,

but the persistent use of the mosque by the resident Muslim community prior to

1904. This was demonstrated by documentary evidence showing the existence of

a mosque at the plot. Significantly, public worship at the mosque was permitted

by the zamindar himself. In these circumstances, the Allahabad High Court held

that the land was not the private property of the zamindar, but a public waqf by

user. There are prescient words in the concurring opinion of Chief Justice

Sulaiman in the case:

―But where a building has stood on a piece of land for a long

time and the worship has been performed in that building, then it
would be a matter of inference for the court which is the Judge of
facts, as to whether the right has been exercised in that building
for such a sufficiently long time as to justify the presumption that
the building itself has been allowed to be consecrated for the
purpose of such rights being performed…‖

The question whether the use of a building or property for public religious worship

has satisfied the legal requirements to be recognised as a public waqf is a matter

of evidence. It is a ―matter of inference‖ for the court, having examined the

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evidence on record, to determine whether the use of the property has been for

sufficiently long and consistent with the purported use to justify the recognition of

a public waqf absent an express dedication. Given the irrevocable, permanent

and inalienable nature of a waqf, the evidentiary threshold for establishing a waqf

by user is high, as it results in a radical change in the characteristics of ownership

over the property.

738. The principle of a waqf by user has also found recognition in the

jurisprudence of this Court. The decision in the case of Faqir Mohamad Shah v

Qazi Fasihuddin Ansari310 concerned two distinct time periods: the period from

circa 1681 to 1880 and the period from 1880 to 1956. As of 1880, there existed

an ‗old mosque‘ which the contesting parties admitted was waqf property.

Subsequent to 1880, the defendant, being the mutawalli of the ‗old mosque‘,

increased its size and built various structures on adjacent properties. Some were

used by him in his personal capacity and some of these structures were used by

the public for worship. Cumulatively, these structures constituted the ‗new

mosque‘. The resident Sunni community, as plaintiffs, sought a declaration that

both the ‗old mosque‘ and the ‗new mosque‘ were waqf properties. The

defendant resisted these claims and argued that the ‗new mosque‘ was his own

personal property. Justice Vivian Bose, speaking for a three judge Bench of this

Court, held:

―20. … It is evident that there was no proof of express

dedication up to the year 1880 nor has any been produced
since, therefore the only question is whether there is
evidence of user and if so, user of what.

310 AIR 1956 SC 713

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70. After a careful survey of the evidence, we have reached the following
conclusions:

(1) that the old mosque as it stood in 1880 is proved

to be wakf property but that nothing beyond the building and
the site on which it stood is shown to have been wakf at that
date;

(2) that this property has been added to from time to time
and the whole is now separately demarcated and that the
additions and accretions form a composite and separate
entity as shown in the plaintiffs‘ map. This is the area marked
ABCD in that map;

(3) that this area is used by the public for religious

purposes along with the old mosque and as the area has
been made into a separately demarcated compact unit for
a single purpose, namely collective and individual
worship in the mosque, it must be regarded as one unit
and be treated as such. The whole is accordingly now
wakf;

(7) that the rest of the property in suit is not shown to be

wakf or accretions to the wakf estate. It is separately
demarcated and severable from the wakf portion ABGD
and the shops to the west of the mosque;

73. … It is now admitted, and was so found in the 1880 litigation,

that the old mosque was wakf property. It can be assumed that
the rest was not wakf at that date and indeed that is also our
conclusion on a review of the evidence. But much has
happened since the 1880 litigation and there have been
subsequent additions and accretions to the original estate
so that now the whole of those additions and accretions
form part and parcel of the original Waqf.‖

(Emphasis supplied)

739. Our jurisprudence recognises the principle of waqf by user even absent an

express deed of dedication or declaration. Whether or not properties are waqf

property by long use is a matter of evidence. The test is whether the property has

been used for public religious worship by those professing the Islamic faith. The

evidentiary threshold is high, in most cases requiring evidence of public worship

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at the property in question since time immemorial. In Faqir Mohamad Shah, it

was admitted that the old mosque was waqf property. The court subsequently

examined the evidence on record to determine whether the structures forming

the ‗new mosque‘ built on property adjoining the ‗old mosque‘ had also been

used for public religious worship. It is on this basis that this Court held portions of

the ‗new mosque‘, in conjunction with the ‗old mosque‘, to be a composite waqf

property.

Application to the present case

740. Having set out the legal principles on waqf by user as recognised by our

courts, the next question is whether the principle is attracted in the present case.

The contention urged on behalf of the plaintiffs in Suit 4 must be read in

conjunction with the relief prayed for in Suit 4. The relief sought is:

―(a) A declaration to the effect that the property indicated by

letters A B C D in the sketch map attached to the plaint is public
mosque commonly known as ‗Babari Masjid‘ and that the land
adjoining the mosque shown in the sketch map by letters E F G
H is a public Muslim graveyard as specified in para 2 of the plaint
may be decreed.

(b) That in case in the opinion of the Court delivery of possession

is deemed to be the proper remedy, a decree for delivery of
possession of the mosque and graveyard in suit by removal of
the idols and other articles which the Hindus may have placed in
the mosque as objects of their worship be passed in plaintiff‘s
favour, against the defendants.

Amendment/

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Addition made as per Court‘s order dt. 25.5.95 Sd./-

(bb) That the statutory Receiver be commanded to hand over the

property in dispute described in Schedule ‗A‘ of the Plaint by
removing the unauthorized structures erected thereon.‖

The claim of waqf by user raised in Suit 4 relates to both the inner and the outer

courtyard. According to the plaintiffs the mosque vests in the Almighty, Allah. It

has been contended that by virtue of the long and continuous use by the resident

Muslim community of the disputed site marked by the letters A B C D, the

disputed site must be recognised as a waqf by user.

741. Dr Dhavan, learned Senior Counsel appearing on behalf of the plaintiffs in

Suit 4, admitted that there is no evidence of possession, use or offering of

worship in the mosque prior to 1856-7. No evidence has been produced to

establish worship at the mosque or possessory control over the disputed property

marked by the letters A B C D over the period of 325 years between the alleged

date of construction in 1528 until the erection of railing by the colonial

government in 1857. Hence in the absence of evidence on record, no conclusion

can be drawn that prior to 1857, the disputed site was used for worship by the

resident Muslim community. Following the events in 1856-57, the colonial

government erected the railing to bifurcate the areas of worship into the inner

courtyard and the outer courtyard. Shortly thereafter, the Ramchabutra was

constructed in the outer courtyard. Worship at the Ramchabutra and at the

preexisting Sita Rasoi led to the worship of the Hindus being institutionalised

within the property marked by the letters A B C D.

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742. The construction of the railing was not an attempt to settle proprietary

rights. It was an expedient measure to ensure law and order. Disputes between

1858 and 1883 indicated that the attempt to exclude the Hindus from the inner

courtyard by raising a railing was a matter of continuing dispute. Significantly, the

activities of the Hindu devotees in the outer courtyard continued. An important

indicator in this regard was the decision of the colonial administration to allow the

opening of an additional door to the outer courtyard in 1877 to facilitate the entry

of Hindu devotees against which objections were raised and rejected. The need

for an additional point of entry for Hindu devotees is an indicator of the extensive

nature of their use to offer worship. On gaining entry, the Hindu devotees offered

worship at several structures such as the Ramchabutra and Sita Rasoi. The

Bhandar was also under their control in the outer courtyard. This indicated that

insofar as the outer courtyard was concerned, the Hindu devotees were in settled

possession and actively practicing their faith. This possession of the Hindu

devotees over the outer courtyard was open and to the knowledge of the

Muslims. Several incidents between 1857 and 1949 have been adverted to in

another part of the judgment which indicate that the possession of the inner

courtyard was a matter of serious contest. The Muslims did not have possession

over the outer courtyard. There is a lack of adequate evidence to establish that

there was exclusive or unimpeded use of the inner courtyard after 1858.

743. The contention of the plaintiffs in Suit 4 is that the entire property of the

mosque, including both the inner and outer courtyards is waqf property. Once a

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property is recognised as waqf, the property is permanently and irrevocably

vested in the Almighty, Allah from the date the waqf is deemed to be in existence.

The land is rendered inalienable and falls within the regulatory framework of waqf

legislation and Islamic law. The doctrine of waqf by user is well established in our

law. However, as noted by the precedents detailed above, it is a doctrine of

necessity to deal with cases where a property has been the site of long and

consistent religious use by members of the Islamic faith but the original

dedication is lost to the sands of time. Given the radical alterations to the

characteristics of ownership of the property consequent upon a recognition of a

waqf by user, the evidentiary burden to prove a waqf by user is high. The

pleadings in the plaint in Suit 4 are deficient. No particulars of the extent or

nature of the use have been set out. A stray sentence in paragraph 2 of the plaint

cannot sustain a case of waqf by user. Moreover, the contention that the entire

property was a single composite waqf cannot be assessed in a vacuum. The

Court cannot ignore the evidence of established religious worship by Hindu

devotees within the premises of the disputed site. If the contention urged by the

plaintiffs in Suit 4 that the entire disputed property is a waqf by user is accepted,

it would amount to extinguishing all rights claimed by the Hindus in the disputed

property as a site of religious worship.

744. In the decisions adverted to above in which claims of a waqf by user have

been recognised, the claims were not made in the context of another religious

community also utilising the property for the conduct of religious worship. It flows

that the consequence of recognition of a waqf by user in the facts of these cases
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did not lead to the extinguishing of competing and legally tenable rights of

another religious community. In Miru v Ram Gopal,366 the Allahabad High Court

held that the public religious use of the zamindar‘s property extinguished the

zamindar‘s secular title to the property. However, this decision was in the context

where there existed a katcha mosque on the land and the zamindar consented to

the continued use of his land for Muslim prayers. The High Court observed:

―The documentary evidence consisted of three documents,

firstly, there was a khasra Ex. A of the year 1311 Fasli (1903-04).
This khasra states that plot No. 119 was entered as ―masjid‖…
If the zamindar had an objection to that entry he could have
made

366
1935 AIR All 891
an application to the court under section 111 of the Land
Revenue Act. The fact that he did not make any objection to the
entry shows that he acquiesced in the entry.

It is not stated that the zamindar dedicated the property for the
mosque. It is stated that the zamindar allowed the defendants
to dedicate the building as a mosque by their user of the
building for the purpose of a mosque with the consent,
express or implied, of the zamindar.‖

(Emphasis supplied)

In that case, the zamindar had acquiesced to the continued prayers by the

Muslims at this property and the high evidentiary threshold of continuous and

longstanding religious worship was satisfied. The consent of the zamindar,

express or implied was a distinguishing factor. The present case is materially

different. There is no acquiescence by any of the parties concerned. To the

contrary, the Hindu devotees of Lord Ram have consistently asserted their rights

to the disputed property.

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745. The evidence adduced does not demonstrate that the entire disputed

property was utilised by the resident Muslim community for public religious

worship. It is evident that the outer courtyard was in fact used by and was in the

possession of the devotees of Lord Ram. These portions of the property were

admittedly not used for religious purposes by the members of the resident Muslim

community and cannot be waqf property by long use. Further, the consequences

that stem from recognising the entire disputed property marked by the letters A B

C D in the present case as waqf by user is a mirror image to the claim of the

plaintiffs in Suit 5 of recognising the land itself as a juristic person. The

consequence would be the destruction of the rights of another community to offer

worship by virtue of the internal tenets of a specific religion which have been

recognised for a specific purpose. The law recognises that where, since time

immemorial, worship has been offered at a land with a mosque, the land is

presumed to have been dedicated for a religious purpose and even absent a

dedication, is waqf by user. However, this may not be extended to the

extinguishment of competing and established religious rights of another

community in the same property particular in the face of the evidence noted

above. Accepting the contention urged on behalf of the plaintiffs in Suit 4 would

have this effect and cannot be countenanced by law.

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O.12 Possession and adverse possession

746. The plaintiffs in Suit 4 plead adverse possession in the alternative. The

basis for claiming adverse possession has been set up in paragraph 11(a)

of the plaint (as amended) which reads as follows:

―11(a). That assuming, though not admitting, that at one time

there existed a Hindu temple as alleged by the defendants
representatives of the Hindus on the site of which emperor
Babar built the mosque, some 433 years ago, the Muslims, by
virtue of their long exclusive and continuous possession
beginning from the time the mosque was built and continuing
right upto the time some mosque, some mischievous persons
entered the mosque and desecrated the mosque as alleged in
the preceding paragraphs of the plaint, the Muslims perfected
their title by adverse possessions and the right, title or interest
of the temple and of the Hindu public if any extinguished.‖

The pleadings in paragraph 11(a) are based on assumption: that in the event that

there existed a Hindu temple, as alleged by the defendants on the site of which

the mosque was constructed; the Muslims claim to have perfected their title by

adverse possession by long, exclusive and continuous possession and that the

right, title and interest of the temple and of the Hindu public, if any, stands

extinguished. The plea of adverse possession is subsidiary to the main plea of

the mosque being dedicated upon its construction by Babur for public worship by

Muslims.

747. A plea of adverse possession is founded on the acceptance that ownership

of the property vests in another against whom the claimant asserts a

possession adverse to the title of the other. Possession is adverse in the

sense that it is contrary to the acknowledged title in the other person

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against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4

ought to be cognisant of the fact that any claim of adverse possession

against the Hindus or the temple would amount to an acceptance of a title

in the latter. Dr Dhavan has submitted that this plea is a subsidiary or

alternate plea upon which it is not necessary for the plaintiffs to stand in

the event that their main plea on title is held to be established on evidence.

It becomes then necessary to assess as to whether the claim of adverse

possession has been established.

748. A person who sets up a plea of adverse possession must establish both

possession which is peaceful, open and continuous - possession which

meets the requirement of being ‗nec vi nec claim and nec precario‘. To

substantiate a plea of adverse possession, the character of the possession

must be adequate in continuity and in the public because the possession

has to be to the knowledge of the true owner in order for it to be adverse.

These requirements have to be duly established first by adequate

pleadings and second by leading sufficient evidence. Evidence, it is well

settled, can only be adduced with reference to matters which are pleaded

in a civil suit and in the absence of an adequate pleading, evidence by

itself cannot supply the deficiency of a pleaded case.

Reading paragraph 11(a), it becomes evident that beyond stating that the

Muslims have been in long exclusive and continuous possession beginning from

the time when the Mosque was built and until it was desecrated, no factual basis

has been furnished. This is not merely a matter of details or evidence. A plea of
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adverse possession seeks to defeat the rights of the true owner and the law is

not readily accepting of such a case unless a clear and cogent basis has been

made out in the pleadings and established in the evidence.

749. Though, paragraph 11(a) dates the commencement of the possession of

the Muslims from the date of the construction of the mosque, it has

emerged that no records are available with respect to possession for the

period between 1528 and 1860. Moreover, setting up the plea of adverse

possession in the alternative or as a subsidiary plea seems to be a distinct

improvement in the manner in which the presentation of the plea has

evolved. In Suit 2 (which was withdrawn subsequently), a written statement

was filed by the first defendant who is also plaintiff no 10 in Suit 4. In the

course of the written statement, the first defendant asserted that if at any

time any plaintiffs to the suit or any other Hindus prove that prior to the

construction of the Masjid there existed any temple on the spot, even in

that case the Muslims were in possession for over 400 years, and their

possession was in the knowledge of the Hindus. Consequently, there is no

title in the Hindus.

750. Subsequently, by the time that Suit 4 was instituted, the plea of adverse

possession was relegated to a subsidiary contention, the main contention

being that there was a dedication to public worship upon the construction

of the mosque by Babur. In fact, even during the course of these

proceedings, there has been a certain amount of ambivalence about the

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manner in which the plea of adverse possession has been addressed in

the course of the proceedings. Dr Rajeev Dhavan in the course of his

written arguments on adverse possession has adduced the following

submissions:

―7.1 In suit 4 the principal claim of adverse possession has

been made by the Hindu parties with special emphasis by the
Nirmohi Akhara (Plaintiff in Suit 3 and defendants in Suits 4
and 5) and by the Plaintiffs in suit 5 to assert that no adverse
possession can be claimed against the Janma Bhumi
(Plaintiff No. 2).
7.2 As mentioned above, Mr Jilani Senior Advocate has
already shown with reference to documents even without the
support of witness statements to establish that the claim of
adverse possession from 1939-49 is unfounded.‖

The above extract from the submissions in fact seeks to emphasize that the

principal claim of adverse possession in Suit 4 has been made by the Hindu

parties with special emphasis by the Nirmohi Akhara and deities in Suit 5. What

the above submission misses is that the case of adverse possession in Suit 4 has

been set up by the plaintiffs themselves, led by the Sunni Central Waqf Board.

Instead, the submission while addressing arguments in Suit 4 has been inverted

to appear as though it is a submission which is being asserted only by Nirmohi

Akhara and the deities. Paragraph 11(a) which has been extracted above is the

pleading of the Sunni Central Waqf Board and the other supporting plaintiffs

which specifically seeks to set up a plea of adverse possession.

751. Any attempt to define possession must be context specific. A uniform

formulation of principle of universal application is elusive to the grasp. The

difficulty lies in converting myriad factual situations, replete with their

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complexities, into a legal paradigm. The doctrine coalesces a fact – that of

being in possession – and an intent, the animus of being in possession.

752. In Supdt. and Remembrance of Legal Affairs, West Bengal v Anil

Kumar Bhunja311, Justice R S Sarkaria, speaking for a three judge Bench of this

Court noted that the concept of possession is ―polymorphous‖ embodying both a

right (the right to enjoy) and a fact (the real intention). The learned judge held:

―13. ―It is impossible to work out a completely logical and

precise definition of ―possession‖ uniformly applicable to all
situations in the contexts of all statutes. Dias and Hughes in
their book on Jurisprudence say that if a topic ever suffered
from too much theorising it is that of ―possession‖. Much of
this difficulty and confusion is (as pointed out in Salmond's
Jurisprudence, 12th Edn., 1966) caused by the fact that
possession is not purely a legal concept. ―Possession‖,
implies a right and a fact; the right to enjoy annexed to the
right of property and the fact of the real intention. It involves
power of control and intent to control. (See Dias and Hughes,
ibid.)‖

These observations were made in the context of possession in Section 29(b) of the

Arms Act 1959.

In P Lakshmi Reddy v L Lakshmi Reddy368, Justice Jagannadhadas, speaking

for a three judge Bench of this Court dwelt on the ―classical requirement‖ of

adverse possession:

―4. Now, the ordinary classical requirement of adverse possession

is that it should be nec vi nec clam nec precario. (See Secretary
of State for India v. Debendra Lal Khan [(1933) LR
61 IA 78, 82] ). The possession required must be adequate in
continuity, in publicity and in extent to show that it is possession
adverse to the competitor.‖

311 (1979) 4 SCC 274

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The court cited the following extract from U N Mitra‘s ―Tagore Law Lectures on

the Law of Limitation and Prescription‖:

―7…An adverse holding is an actual and

exclusive appropriation of land commenced and continued
under a claim of right, either under an openly avowed claim, or
under a constructive claim (arising from the acts and
circumstances attending the appropriation), to hold the land
against him (sic) who was in possession. (Angell, Sections 390
and 398). It is the intention to claim adversely accompanied by
such an invasion of the rights of the opposite party as gives him
a cause of action which constitutes adverse possession.‖369

This Court held:

―7…Consonant with this principle the commencement of

adverse possession, in favour of a person implies that the
person is in actual possession, at the time, with a notorious
hostile claim of exclusive title, to repel which, the true owner
would then be in a position to maintain an action. It would
follow that whatever may be the animus or intention of a
person wanting to acquire title by adverse possession his
adverse possession cannot commence until he obtains actual
possession with the requisite animus.‖

368
1957 SCR 195
369
6th Edition, Vol. I, Lecture VI, at page 159
In Karnataka Board of Wakf v Government of India312, Justice S Rajendra Babu,

speaking for a two judge Bench held that:

―11…Physical fact of exclusive possession and the

animus possidendi to hold as owner in exclusion to the
actual owner are the most important factors that are to be
accounted in cases of this nature. Plea of adverse
possession is not a pure question of law but a blended one of
fact and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came into
possession, (b) what was the nature of his possession,
(c) whether the factum of possession was known to the
other party, (d) how long his possession has continued,
and (e) his possession was open and undisturbed.‖
(Emphasis supplied)

312 (2004) 10 SCC 779

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The ingredients must be set up in the pleadings and proved in evidence. There

can be no proof sans pleadings and pleadings without evidence will not establish

a case in law.

In Annakili v A Vedanayagam313, this Court emphasized that mere possession of

land would not ripen into a possessory title. The possessor must have animus

possidendi and hold the land adverse to the title of the true owner. Moreover, he

must continue in that capacity for the period prescribed under the Limitation Act.

753. In the decision of the Privy Council in Masjid Shahidganj v. Shiromani

Gurdwara Prabandhak Committee, Amritsar314, there was a structure of a

mosque in Lahore which had been built in 1722. From 1762 or thereabouts the

building and adjacent land had been in the occupation and possession of Sikhs.

At the time of annexation by the British in 1849, the mosque and the property dedicated to it

were in the possession of the Mahant of the Sikh Gurudwara and the building of the mosque

had been used by the custodians of the Sikh institution. Under the Sikh Gurdwaras Act 1925,

the old mosque building and appurtenant adjacent land were included as belonging to the

Gurudwara. The Muslims initiated litigation before the Sikhs Gurudwaras Tribunal in 1928

which resulted in a finding that their claim was defeated by reason of adverse possession.

A suit was instituted by 18 plaintiffs including by the mosque itself suing through a

next friend while the others claimed a right of worship. The suit was for a

declaration against the Shiromani Gurdwara Prabandhak Committee that the

313 (2007) 14 SCC 308

314 AIR 1940 PC 116

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building was a mosque in which the followers of Islam had a right to worship. The

suit was dismissed by the District Judge and his decision was affirmed in a split

verdict by a Full Bench of the High Court. Sir George Rankin speaking for the

Privy Council held:

―It was for the Plaintiffs to establish the true position at the
date of annexation. Since the Sikh mahants had held
possession for a very long time under the Sikh state there is a
heavy burden on the Plaintiffs to displace the presumption
that the mahants' possession was in accordance with the law
of the time and place.‖

Dealing with the argument that in the case of a mosque, like a graveyard, the waqf

property is intended to be used in specie and not to be let or cultivated, the

Privy Council held:

―…But the Limitation Act is not dealing with the competence
of alienations at Mahomedan law. It provides a rule of
procedure whereby British Indian Courts do not enforce rights
after a certain time, with the result that certain rights come to
an end. It is impossible to read into the modern Limitation
Acts any exception for property made waqf for the
purposes of a mosque whether the purpose be merely to
provide money for the upkeep and conduct of a mosque
or to provide a site and building for the purpose. While
their Lordships have every sympathy with a religious
sentiment which would ascribe sanctity and inviolability to a
place of worship, they cannot under the Limitation Act accept
the contentions that such a building cannot be possessed
adversely to the waqf, or that it is not so possessed so long
as it is referred to as ―mosque,‖ or unless the building is
razed to the ground or loses the appearance which reveals its
original purpose.‖
(Emphasis supplied)

754. In a judgment rendered in 2015, one of us (Justice Abdul Nazeer) as a

Single Judge of the Karnataka High Court succinctly identified and laid down 315

the pre-requisites of a claim to adverse possession in the following terms:

315 Smt. Pilla Akkayyamma v Channappa ILR 2015 Kar 3841

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―27. The concept of adverse possession contemplates a

hostile possession i.e., a possession which is expressly
or impliedly in denial of the title of the true owner.
Possession to be adverse must be possession by a
person, who does not acknowledge others‘ rights but
denies them. Possession implies dominion and control
and the consciousness in the mind of the person having
dominion over an object that he has it and can exercise
it. Mere possession of the land would not ripen into
possessory title. Possessor must have animus possidendi
and hold the land adverse to the title of the true owner.
Occupation only implies bare use of the land without any right
to retain it. In order to constitute adverse possession, there
must be actual possession of a person claiming as of right by
himself or by persons deriving title from him. To prove title to
the land by adverse possession, it is not sufficient to
show that some acts of possession have been done. The
possession required must be adequate in continuity, in
publicity and in extent to show that it is adverse to the
owner. In other words, the possession must be actual,
visible, exclusive, hostile and continued during the time
necessary to create a bar under the statute of limitation.
30. In a suit falling under Article 65 of the Limitation Act,
plaintiff must establish his title to the property. He need not
prove that he was in possession within 12 years. If he fails to
prove his title, the suits fails, and the question of adverse
possession does not arise in such a case. When the plaintiff
has established his title to a land, the burden of proving that
he has lost that title by reason of the adverse possession of
the defendant lies upon the defendant. If the defendant fails to
prove that he has been in adverse possession for more than
12 years, the plaintiff is entitled to succeed simply on the
strength of his title. A person alleging that he has become
owner of immovable property by adverse possession must
establish that he was in possession of the property peaceably,
openly and in assertion of a title hostile to the real owner.
Stricter proof is required to establish acquisition of title
by adverse possession for the statutory period‖
(Emphasis supplied)

In Ravinder Kaur Grewal v Manjit Kaur316, a three judge Bench of this Court of

which one of us, Justice Abdul Nazeer, was a part, further developed the law on

adverse possession to hold that any person who has perfected their title by way

316 (2019) 8 SCC 729

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of adverse possession, can file a suit for restoration of possession in case of

dispossession. In this view, adverse possession is both a sword and a shield.

755. The plaintiffs have failed to adopt a clear stand evidently because they are

conscious of the fact that in pleading adverse possession, they must necessarily

carry the burden of acknowledging the title of the person or the entity against

whom the plea of adverse possession has not been adequately set up in the

pleadings and as noted above, has not been put-forth with any certitude in the

course of the submissions. Above all, it is impossible for the plaintiffs to set up a

case of being in peaceful, open and continuous possession of the entire property.

Dr Dhavan repeatedly asserted that the Muslims were obstructed in their offering

worship at the mosque as a result of the illegalities of the Hindus. For this

purposes, Dr Dhavan refers to the incidents which took place in 1856-7, 1934

and 1949 – the last of them leading up to the preliminary order under Section

145. The events which are associated with each of the above incidents constitute

indicators in the ultimate finding that in spite of the existence of the structure of

the mosque, possession as asserted by the Muslims cannot be regarded as

meeting the threshold required for discharging the burden of a case of adverse

possession. The evidence in the records indicate that Hindus, post the setting up

of the railing have, in any event, been in possession of the outer courtyard. On

this basis alone, the plea of adverse possession set up by the plaintiffs in respect

of the entirety of the area represented by the letters A B C D must fail.

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For the reasons indicated above, the plaintiffs in Suit 4 have failed to meet the requirements of

adverse possession.

O.13 Doctrine of the lost grant

756. During the course of arguments, Dr Rajeev Dhavan, learned Senior

Counsel appearing on behalf of the Sunni Central Waqf Board, urged that by

virtue of the doctrine of lost grant, the plaintiffs in Suit 4 sought a declaration on

the basis of a dedication of the mosque, upon its construction by Babur in 1528

for the worship of the Muslim community.

Decisions on the doctrine

757. Under the doctrine of lost grant, a long-continued use or possession can

raise a legal presumption that the right exercised was previously conveyed to the

user or possessor and that the instrument of conveyance has been lost.317

According to Halsbury Laws of England –

―The courts first laid down the rule that from the user of a
lifetime the presumption arose that a similar use had existed
from remote antiquity. As it could not but happen that in many
cases, such a presumption was impossible, in order to
support possession and enjoyment, which the law ought to
have invested with the character of rights, recourse was had
to the theory of lost modern grants...‖318

The doctrine only applies where the enjoyment or use of land cannot otherwise

be reasonably accounted for.319 In the absence of an instrument of conveyance,

317 Jerome J. Curtis, " Reviving The Lost Grant" Real Property, Probate And Trust Journal 23, No. 3 (1988)
at pages 535-60.

318 Halsbury Laws of England, Vol 14, Fourth Edition para

90
319 Halsbury Laws of England, Vol 14, Fourth Edition, para
91

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enjoyment since the time of legal memory is to be viewed as an indication that

the right claimed had been conferred on the claimant (or his predecessors) by a

grant.320 The grant maybe expressed or presumed.321 The onus of proving

continued and uninterrupted enjoyment of property through long use is on the

plaintiff. The court will not presume a lost grant in cases where there was no

person who could ever have made such a grant, or where there was no person or

persons competent to receive a particular grant.322 As there is a legal presumption

of a grant, the doctrine is not applicable unless throughout the necessary period

there existed some person or persons, alone or together, capable of conveying

the interest claimed to have been transferred by the lost grant. 323 For valid

application of the doctrine, the only conclusive evidence is that possession must

be uninterrupted for a sufficient length of time. The doctrine of lost grant is not

based upon evidence of long use but for default of evidence. 324 A person seeking

to establish a claim to an easement under this doctrine should plead lost grant,

but need not state in his pleadings the date and names of the parties to the

alleged modern grant.325

758. In a Privy Council decision in Chockalingam Pillai v Mayandi Chettiar326,

Lord Buckmaster explained the presumption of a lawful origin in support of

proprietary rights long and quietly enjoyed in the following terms:

320 Jerome J. Curtis, " Reviving The Lost Grant‖ Real Property, Probate And Trust Journal 23, No. 3 (1988) at pages 535-60.
321 Jerome J. Curtis, "Reviving The Lost Grant‖ Real Property, Probate And Trust Journal 23, No. 3 (1988) at pages 535-60.
322 Halsbury Laws of England, Vol 14, Fourth Edition, para
94
323 Halsbury Laws of England, Vol 14, Fourth Edition, para
94
324 Attorney General v Horner (No.2) [1913] 2 Ch. 140
325 Halsbury Laws of England, Vol 14, Fourth Edition, para 96

326 ILR 19 Madras 485

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―When every party to the original transaction has passed

away and it becomes completely impossible to ascertain what
were the circumstances which caused the original grant to be
made, it is only following the policy, which the courts always
adopt, of securing, as far as possible, quiet possession, to
people who are in apparent lawful holding of an estate, to
assume that the grant was lawfully and not unlawfully made.‖

In the decision of the House of Lords in Harris and Earl of Chesterfield327, Lord Loreburn

LJ held:

―... But the principle is surely based upon good sense. The
lapse of time gradually effaces records of past transactions,
and it would be intolerable if any body of men should be
dispossessed of property which they and their predecessors
have enjoyed during all human memory, merely upon the
ground that they cannot show how it was originally acquired.
That is the reason why the law infers that the original
acquisition was lawful, unless the property claimed is such
that no such body of men could lawfully acquire it, or the facts
show that it could not have been acquired in the only ways
which the law allows.‖

In the above decision, the question before the court was whether a presumption

of lost grant could be made by virtue of the parishes exercising fishery rights

admittedly for several centuries over a river. The House of Lords held by a

majority that no presumption of lost grant was available in the case, inasmuch as

the free holders of several parishes who were an indefinite and fluctuating body

of persons could not be proper grantees in law.

759. The above decision was referred to in a decision of the Calcutta High

Court in Asrabulla v Kiamatulla Haji Chaudhury328, where the plaintiffs claimed

that since time immemorial the inhabitants of a village had been grazing their

327 [1911] A.C. 623

328 AIR 1937 Cal 245

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cattle in a disputed land openly and without any interruptions and thereby, they

had acquired a right of pasturage by virtue of the doctrine of presumption of lost

grant. Justice B K Mukherjea (as he then was), speaking for the Division Bench

held thus:

―... in order that there may be a presumption of lawful origin,

it is necessary to establish that there was no legal bar in the
way of valid grant at its inception, and that not only there was
a capable grantor but there was a capable grantee also in
whose favour the grant could have been made. If for any
reason a valid grant could not have been made no
presumption of such a grant can arise.‖

760. The Privy Council in N Sankaranarayana Pillayan v Board Of

Commissioners For The Hindu Religious Endowments, Madras 329, dealt with

a case where the parties claimed that they were the owners of the suit properties,

comprising of both inam (rent free) and ryotwari or ayan (assessed) lands, and

that only a part of the income was subject to a charge for meeting the expenses

of the midnight kattalai according to a prescribed scale in the Sri

Papavinasaswami Temple at Papanasam in Madras. The question before the

court was whether the suit properties had been wholly dedicated to the religious

charity or whether there had been merely a charge on the income of the

properties in favour of the charity. The court found that the endowment was

founded by the Carnatic Rajas and not by the ancestors of the appellants, who

were mere managers or supervisors of the endowment. The properties and the

income therefrom were absolutely dedicated to the temple, and mainly for the

purposes of the midnight services, and the appellants had no beneficial interest

329 AIR 1948 PC 25

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in any surplus income. Discussing the documentary evidence for the purpose of

determining the true nature of the endowment, Justice M R Jayakar held thus:

―As there was no deed or grant or any document throwing

light on the nature or terms of the endowment, the High Court,
in their Lordships' opinion, was justified in relying on other
documentary evidence for the purpose of determining what
the true nature of the endowment. Such documentary
evidence consisted, inter alia, of inam-registers, title deeds,
statements in survey and settlement registers, pattas and
orders of various revenue authorities to their subordinates in
connection with the endowment in question.‖

...

In the present case no such arrangement is in evidence with

which the possession or enjoyment of the appellants' family
could be said to have commenced. The only arrangement
mentioned is the compromise between the members of the
family to which the endowment was not a party.‖

The Privy Council referred to the decision in Chockalingam Pillai and discussed

the applicability of doctrine of lost grant in cases involving absence of the

existence of actual evidence. It was held thus:

―... The other case relied on was Mahammad Mazaffar-

alMusavi v. Jabeda Khatun (AIR 1930 PC 103) where the rule
was affirmed, relating to the presumption of a lawful origin in
support of proprietary rights long and quietly enjoyed, as it
was explained in an earlier case [Chockalingam Pillai v
Mayandi Chettiar ILR 19 Madras 485] by Lord
Buckmaster…But it was explained in the same case that this
rule is applicable where there is absence or failure of actual
evidence. The presumption, it was stated, of an origin in some
lawful title which the courts have so often readily made in
order to support possessory rights long and quietly enjoyed,
arises where no actual proof of title is forthcoming, and the
rule has to be resorted to because of the failure of actual
evidence. In the present case, where there is ample and
convincing proof of the nature of the grant, the object of the
endowment and the capacity of the persons claiming the user
and enjoyment, the rule can hardly have any application.‖

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761. In a later decision of the Privy Council in Lakshmidhar Misra v

Rangalal330, the appellants in a representative capacity on behalf of the villagers

claimed a parcel of land as a cremation ground since time immemorial. The

respondent on the other hand claimed the land for the purpose of a private

industry. The Subordinate Judge in first appeal held that the reservation of land

amounted to a dedication or a grant by the landlord. The High Court in second

appeal set aside the decision of the Subordinate Judge on the ground that there

existed no valid grant and dismissed the appellant‘s suit. In appeal, the Privy

Council held that the issue of whether the land had been used as a cremation

ground was a mixed question of fact and law and the appellant‘s claim that the

disputed property was the village cremation ground was based on customary

practice attracting a legal custom. Hence the doctrine of lost grant was held to

have no applicability. Explaining the applicability of doctrine of lost grant, Lord

Radcliffe held thus:

―... It is essentially a suit to establish the rights of the

villagers in the disputed area. No one claimed or spoke of the
land as subject to the rights of the general public nor indeed
would it be easy to give a meaning to such a conception as
applied to a cremation ground in a particular village. But
dedication is only known to English law as something
equivalent to an irrevocable licence granted by the owner of
soil to the use of the public. Dedication of a piece of land to a
limited section of the public, such as the inhabitants of a
village, is a claim unknown in law, and evidence limited to
such special user would not justify a finding of dedication
[see Poole v. Huskinson, Hildreth v. Adamson and Bermonds
ey v. Brown. Much the same result might well be achieved by
the creation of a charitable trust binding the land, but that is
not dedication, nor is it in question here. At no stage of the
hearing is there any record of a claim that the village
community constitutes a corporation administering a trust for
some classes of its inhabitants, nor was any such argument
advanced before their Lordships.

330 AIR 1950 PC 56

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This doctrine originated as a technical device to enable title to

be made by prescription despite the impossibility of proving
―immemorial user.‖ By English common law prescription had
to run from time immemorial which, by convention, began in
the year 1189. If it was possible to demonstrate that the user
in question, though ancient, originated since 1189 the proof of
title by the prescription of immemorial user failed. To get
round this difficulty judges allowed, or even encouraged,
juries to find that the right in question, though less ancient
than 1189, originatel in a lost grant since that date. Thus the
right acquired the necessary legal origin. But such a right,
just as much as an easement, had to be attached to and
to descend with an estate: moreover, since it originated
in grant, its owners, whether original or by devolution,
had to be such persons as were capable of being the
recipients of a grant under English law. A right
exercisable by the inhabitants of a village from time to
time is neither attached to any estate in land nor is it
such a right as is capable of being made the subject of a
grant. There are no admissible grantees. In fact, the
doctrine of lost grant has no application to such rights as
those of the inhabitants of a particular locality to
continue an ancient and established user of some piece
of land.‖ (Emphasis supplied)

762. In a three judge Bench decision of this Court in Raja Braja Sundar Deb v

Moni Behara331, it was claimed that the principal defendants and their ancestors

had long remained in undisturbed actual physical possession of a fishery on a

fixed annual rental and had acquired this right in all possible ways i.e. by grant,

custom, adverse possession and easement. A suit for injunction was brought by

the plaintiff on behalf other fishermen residing in nine villages on the ground that

being the proprietors of the fishery, they were the exclusive owners of the fishery

and the defendants were interfering with the plaintiff‘s right of enjoyment and

causing losses. The Trial Court passed a decree in favour of the plaintiff which

was later modified in appeal by the High Court, where it was held that the

defendants by virtue of lost grant had exclusive rights as tenants to fish in the

331 AIR 1951 SC 247

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fishery only during the Hilsa season. Reversing the decision of the High Court

Justice Meher Chand Mahajan (as he then was), speaking for the Bench held

thus:

―12. ...We find it difficult to uphold the view of the High Court
that the defendants were in possession of the disputed fishery
under a lost grant. This doctrine has no application to the
case of inhabitants of particular localities seeking to
establish rights of user to some piece of land or water. As
pointed out by Lord Radcliffe in Lakshmidhar
Misra v. Rangalal [AIR 1950 PC 56] the doctrine of lost grant
originated as a technical device to enable title to be made by
prescription despite the impossibility of proving immemorial
user and that since it originated in grant, its owners, whether
original or by devolution, had to be such persons as were
capable of being the recipients of a grant, and that a right
exercisable by the inhabitants of a village from time to time is
neither attached to any estate in land nor is it such a right as
is capable of being made the subject of a grant, there being
no admissible grantees. Reference in this connection may be
made to a Bench decision of the Calcutta High Court in
Asrabulla v. Kiamatulla [AIR 1937 Cal 245] wherein the law on
this subject has been examined in some detail. In that case
the question arose whether the right of pasturage claimed by
a whole body of villagers could be acquired by grant, express
or presumed. After an examination of a number of English
and Indian cases it was held that no lost grant could be
presumed in favour of a fluctuating and unascertained
body of persons who constitute the inhabitants of a
village and that such a right could only be acquired by
custom. The defendants in this case are a fluctuating
body of persons and their number increases or
decreases by each birth or death or by influx or efflux
of fishermen to or from these villages...‖
(Emphasis supplied)

763. According to ―Halsbury Laws of England‖:

―The presumption can only be rebutted by evidence that the

existence of such a grant is impossible; nothing short of such
evidence will suffice and a judge is not entitled to refuse to
presume a grant merely because he is convinced that it was
never in fact granted.‖332

332 Halsbury Laws of England, Vol 14, Fourth Edition, para 90

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A two judge Bench of this Court in Buddu Satyanarayana v Konduru

Venkatapayya333, dealt with an appeal arising out of a suit for recovery of

possession of certain immovable properties. A suit was instituted by the Executive

Officer appointed by government for ejectment of the defendants on the

allegation that the properties belonged to the temple, having been given to it by a

zamindar in 1770 AD. It was contended that the defendants were in possession

by virtue of being the Archakas and were wrongfully claiming the properties as

their own. The suit was instituted giving notice to the defendants to make over

possession of the suit properties to the plaintiff as the Executive

Officer of the temple. The High Court upheld the order of the Subordinate Judge decreeing the

plaintiff‘s suit. On behalf of the defendants, it was argued before this Court that, by virtue of

the defendants and their predecessors being in possession of the properties from ancient

times, a valid presumption of some lawful title should arise by virtue of doctrine of lost grant.

Justice S R Das speaking for the Bench rejected the contention and held thus:

―2. ... There is no doubt, on the authorities, that a

presumption of an origin in some lawful title may in certain
circumstances be made to support possessory rights long and
quietly enjoyed where no actual proof of title is forthcoming
but it is equally well established that that presumption
cannot be made where there is sufficient evidence and
convincing proof of the nature of the grant and the
persons to whom it was made. It is true that the original
grant is not forthcoming but turning to the evidence we
find two documents which appear to us to be decisive on
the question of title... It will be noticed that neither in the
Inam Register Ex. P-3 nor in the statement Ex. D-3 is there
any mention of the Archakas as the grantee or for the matter
of that, having any the least interest, personal or otherwise, in
the subject-matter of the Inam grant. The two exhibits quite
clearly indicate that the Inam grant was made in favour of
the temple by the grantor and that in the face of this
definite evidence and proof of the nature of the grant, no

333 AIR 1953 SC 195

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presumption of a lost grant can be made in favour of the

Archakas. We, therefore, in agreement with the High Court,
hold that the deity was the grantee and the first question
raised before us must be answered against the appellants.‖

[See also C Periaswami Goundar v Sundaraesa Ayyar334]

764. A Constitution Bench of this Court in Monohar Das Mohanta v Charu

Chandra Pal335, had to deal with a suit for recovery of possession of various plots

of land filed by the appellant, a Mahant of a religious institution against the

defendants. In the alternate, the appellant sought for assessment of fair and

equitable rent. The respondents contested the suits, and pleaded that the

disputed lands did not form part of the zamindari but a grant had been made in

favour of their predecessors-in-title long prior to the permanent settlement and

that neither the Maharaja of Burdwan nor the plaintiff claiming under him had any

title to them. The District Court upheld the decision of the Munsif and held that

the defendants and the predecessors had been in possession for a very long

time without payment of rent and a presumption of lost grant could be made in

their favour. The High Court dismissed the appeal against the decision of the

District Court. The issue before this Court was whether on the materials on

record the courts below were right in presuming a lost grant in favour of the

defendants. This Court held that no presumption of a lost grant could be made in

favour of the defendants, and that the plaintiff was entitled to assessment of fair

and equitable rent on the holdings in their possession. Speaking for the Bench,

334 AIR 1965 SC 516

335 AIR 1955 SC 228

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Justice T L Venkatarama Ayyar, explained the applicability of the doctrine of lost

grant in the following terms:

―7. The circumstances and conditions under which a

presumption of lost grant could be made are well settled.
When a person was found in possession and enjoyment of
land for a considerable period of time under an assertion of
title without challenge, Courts in England were inclined to
ascribe a legal origin to such possession, and when on the
facts a title by prescription could not be sustained, it was held
that a presumption could be made that the possession was
referable to a grant by the owner entitled to the land, but that
such grant had been lost. It was a presumption made for
securing ancient and continued possession, which could not
otherwise be reasonably accounted for. But it was not a
presumptio juris et de jure, and the Courts were not bound to
raise it, if the facts in evidence went against it. ―It cannot be
the duty of a Judge to presume a grant of the non-existence
of which he is convinced‖ observed Farwell, J. in
AttorneyGeneral v. Simpson [(1901) 2 Ch D 671, 698] . So
also the presumption was not made if there was any legal
impediment to the making of it. Thus, it has been held that it
could not be made, if there was no person competent to be
the recipient of such a grant, as where the right is claimed by
a fluctuating body of persons. That was held in Raja Braja
Sundar Deb v. Moni Behara [1951 SCR 431, 446] . There will
likewise be no scope for this presumption, if there is no
person capable of making a grant: (Vide Halsbury's Laws of
England, Vol. IV, p. 574, para 1074); or if the grant would
have been illegal and beyond the powers
of the grantor. (Vide Barker v. Richardson [4 B & Ald
579: 106 ER 1048 at
1049] and Rochdale Canal Company v. Radcliffe [18 QB 287: 118
ER 108 at 118] ).‖

765. In Konda Lakshmana Bapuji v Government of A P336, the respondent

claimed that the land in dispute was shown as Maqta land and later as Inam land.

The appellant claimed to be an assessee of one of the successors to the said

Maqta and he had occupied the land in 1958 and constructed a building upon it.

It was argued that the principle of lost grant would apply as the appellant has

336 (2002) 3 SCC 258

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been in possession of the land in dispute for a considerable length of time under

an assertion of title. It was alleged by the respondent that the claim of the

appellant was not lawful because the land never belonged to the said Maqta;

even otherwise it vested in the Government with effect from the said date and the

order of the Collector, correcting entries in the record of rights, had become final.

A two judge Bench of this Court, while rejecting the claim of doctrine of lost grant,

referred to the decision of Monohar Das Mohanta and held that a presumption

of lost grant will not be available to the appellant who traced his possession from

1954 under an unregistered perpetual lease from the erstwhile Inamdar (Maqtedar).

766. A two judge Bench of this Court in Braja Kishore Jagdev v Lingraj

Samantaray337, dealt with the respondent‘s claim to be a hereditary trustee of a

public religious institution based on the contention that his ancestors had been

entrusted with the management of affairs of the religious institution which had been

established long ago by an unknown founder. It was contended by the respondent

that their family had been performing seva and puja without any interruption

whatsoever as marfatdars and the office of marfatdar was hereditary and regulated

by custom. The appellants contested the claim of the respondent and the Assistant

Commissioner rejected the claim of the respondent. However, the High Court in

appeal allowed the respondent‘s claim and held him to be a hereditary trustee

based on the doctrine of lost grant. Justice S Rajendra Babu while setting aside the

High Court‘s decision held thus:

―6. The other basis upon which the High Court passed its
judgment is that the requirements of law that they are

337 (2000) 6 SCC 540

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hereditary trustees ―since the time of founder‖ occurring in

the definition of ―hereditary trustee‖ is lost in antiquity and
therefore it is not possible to have any direct evidence to
establish the line of succession but could be derived in the
doctrine of ―lost grant‖. It is open to the court to infer grant
from immemorial use when such user is open, as of right and
without interruption but grant will not be inferred if the user
can be explained otherwise. The fiction of a ―lost grant‖ is a
mere presumption from long possession and exercise of user
by easement with acquiescence of the owner, that there must
have been originally a grant to the claimant, which had been
―lost‖. There can be no such presumption of a ―lost grant‖
in favour of a person who constitutes trustees in succession.
We do not think that, with the material on record, any such
interference (sic inference) is possible. Firstly, the contention
had been advanced before the courts that the deity is a
private trust and not covered by the enactment; having failed
in that regard now they want to hang on to the fact that they
are hereditary trustees. In establishing the same they have
miserably failed by not producing evidence of any kind...‖

767. From the analysis of the precedent on the subject, the following principles

can be culled out:

(i) The doctrine of lost grant supplies a rule of evidence. The doctrine is

applicable in the absence of evidence, due to a lapse of time, to prove the

existence of a valid grant issued in antiquity. However, the court is not

bound to raise the presumption where there is sufficient and convincing

evidence to prove possession or a claim to a land in which case the

doctrine of lost grant will have no applicability;

(ii) Where it is impossible for the court to determine the circumstances under

which the grant was made, an assumption is made about the existence of

a valid and positive grant by the servient owner to the possessor or user.

The grant maybe express or presumed. Once the assumption is made, the

court shall, as far as possible, secure the possession of those who have

been in quiet possession;

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(iii) For a lawful presumption there must be no legal impediments. For the

applicability of the doctrine it is necessary to establish that at the inception

when the grant was made not only was there a valid grant but also capable

grantees in whose favour the grant could have been made. In the absence

of defined grantees, there will be no presumption of lost grant;

(iv) For the applicability of the doctrine of lost grant, there must be long,

uninterrupted and peaceful enjoyment of an incorporeal right.

Uninterrupted enjoyment includes continuous use or possession. The requisite

period of use and possession is variable and to be determined from case to

case; and

(v) A distinction has to be made between an assertion of rights due to a

prolonged custom and usage and that by doctrine of lost grant.

Analysis

768. In the present case, the plaintiffs in Suit 4 have set up a claim of declaration

on the basis of a dedication of the mosque constructed by Babur in 1528 for the

worship of the Muslim community and, in the alternate, on adverse possession, if

it is established that the mosque was constructed on the site of a Hindu temple.

There is no pleading by the plaintiffs to support the application of the doctrine of

lost grant. The specific case of the plaintiffs is that of a dedication of the mosque

for public worship by Muslims. This must be evaluated on the basis of the

evidence which has been adduced. In fact, the alternate plea of adverse

possession is destructive of a valid legal basis to apply the doctrine of lost grant

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as a rule of evidence. Adverse possession postulates the vesting of title in one

person and the existence of a long continued and uninterrupted possession of

another, to the knowledge of and in a manner hostile to, the true title holder. The

plea of adverse possession would lead to an inference against the application of

the doctrine of lost grant as a plea of adverse possession is premised in title

vesting in someone other than the alleged grantee. The decisions of this Court

and those of the Privy Council recognising the doctrine as a rule of evidence

show that the principle must be applied with caution. The doctrine does not

constitute an independent, substantive head for the recognition of titles but is a

rule of evidence. Section 110 of the Evidence Act 1872 speaks of the burden of

proof as to ownership : when a question arises as to whether a person in

possession of anything is the owner of such thing, the burden of proving that he is

not the owner is cast on the person who avers that he is not the owner. In the

process of applying the doctrine of lost grant as a rule of evidence, the court must

be circumspect about not travelling beyond the limits set for it by the legislature.

In the present case, absent any pleadings and of evidence on the basis of which a

presumption could be raised of the application of the doctrine, it must

necessarily follow that the doctrine of lost grant has no application.

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

769. The disputed site has witnessed a medley of faiths and the co-existence of

Hindu and Muslim practices, beliefs and customs. A blend of Hindu and

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Muslim elements emerges from the religious and architectural tradition

associated with the erstwhile structure which embodied features both of a

temple and a mosque. While, the distinctive architectural elements

overlapped they were yet easily recognisable. They were symbols of a

syncretic culture. Specific sculptured finds such as the black Kasauti stone

pillars along with the presence of the figurines of Varah, Garud, Jai and

Vijay suggest that they were primarily meant for decoration of a Hindu

temple facade and served as deities to be worshipped. At the same time,

the distinctive appearance of a mosque emerged from the three domes,

the Vazoo, the stone inscription with ‗Allah‘, the mimbar and the mehrab.

These features indicate that the disputed premise was constructed as a

mosque. Within the premises of the same complex there existed two

religious faiths. Their coexistence was at times, especially before 1856,

accepting and at others, antagonistic and a cause of bloodshed. Yet, the

distinctive features of the site, embodying both Hindu and Islamic traditions

led to the creation of a space with an identity of its own. The real

significance attached to the composite structure is evidenced by the nature

and the length of use by both of the parties.

770. The accounts from travellers (chiefly Tieffenthaler and Montgomery

Martin) corroborated by both Hindu and Muslim witnesses indicate

identifiable places of offering worship and the prevalence of worship by

Hindu pilgrims at the disputed site. The setting up of a railing in 1858 by

the British around the disputed structure of the mosque took place in the

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backdrop of a contestation over the claim of the Hindus to worship inside

the precincts of the mosque. One of the earliest instances evidencing

namaz being carried out at the disputed site is documented in an

application dated 5 November 1860, filed by one Rajab Ali for removal of

the construction of the Hindu Chabutra. The application indicated that the

Azaan of the Moazzin was met with the blowing of conch shells by the

Hindus. The railing which comprised of a brick grill-wall was neither a sub-

division of the disputed site, which was one composite property, or a

determination of title by the colonial administration. This is evident from - (i)

the immediate setting up of the Ramchabutra by the Hindus right outside

three domed structure upon the setting up of the railing; (ii) the continued

assertion of rights to the inner courtyard by Hindus; and (iii) offering of

worship by devotees towards the ‗Garbh Grih‘ standing outside the railing.

The construction of Ramchabutra and the worship offered there was an

event which coincided with the setting up of the railing. The railing was an

effort to maintain peace at the site. However, peace remained

elusive.

771. The oral witness accounts of the Hindus show their faith and belief that the

‗Garbh-Grih‘ was the birth-place of Lord Ram and the existence of long

continued worship by the Hindus at the disputed site. As regards namaz within

the disputed site, the evidence on record of the Muslim witnesses, indicates that

post 1934 namaz was being offered until 16 December 1949. However, the extent

of namaz would appear to have been confined to Friday namaz particularly in the

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period preceding the events of December 1949. Both Hindu and Muslim

witnesses state that active measures were being taken by the Sadhus and

Bairagis to prevent the Muslims from approaching the disputed premises and

from offering prayers. This primarily shows that the disputed site witnessed use

by worshippers of both the faiths. Obstructing Muslims from accessing the

mosque did not mean that they had had no claim to or had abandoned the

disputed site. However, it needs to be remembered that the present case relates

to title or ownership of this composite place of worship. In the absence of

historical records with respect to ownership or title, the court has to determine the

nature and use of the disputed premises as a whole by either of the parties. In

determining the nature of use, the court has to factor in the length and extent of

use.

772. In assessing the title of the Muslims, the physical structure of the mosque

is one fact to be taken into consideration. But a claim to possessory title

has to be based on exclusive and unimpeded possession which has to be

established by evidence. As shown above, the disputed premises are

characterised by distinct architectural characteristics of Hindu and Islamic

cultures. The claim to title will have to be judged from the perspective of

long and continued possession. It becomes relevant to note the extent to

which the Muslims have asserted their claim to the entirety of the property,

which forms a composite whole, comprised of the inner and outer

courtyards in comparison with the contesting claims of the Hindus. In

relation to the outer courtyard, both Hindu and Muslim witnesses have

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admitted the presence of the Ramchabutra and other places of religious

significance which were being continuously worshipped by the Hindus. The

access of Hindus to and their possession of the outer courtyard was

unimpeded.

773. Despite the setting up of the grill-brick wall in 1857, the Hindus never

accepted the division of the inner and the outer courtyard. For the Hindus,

the entire complex as a whole was of religious significance. A demarcation

by the British for the purposes of maintaining law and order did not

obliterate their belief in the relevance of the ‗Garbh-Grih‘ being the birth-

place of Lord Ram. This is evident from the witness testimonies which

indicate that pilgrims offered prayer standing at the railing by looking

towards the sanctum sanctorum. Another relevant piece of evidence is the

admission of the Moazzin of the Babri Mosque in his complaint dated 30

November 1858 against Nihang Singh. The Moazzin admitted that

previously the symbol of Janamsthan had been there for hundreds of years

and Hindus did puja inside the three domed structure. Absent any division

of the site, the Hindus had multiple points and forms of worship within the

disputed premises which included the Ramchabutra and Sita Rasoi and

the parikrama of the disputed premises. Even after the railing was set up,

Hindu worship at Ramchabutra, Sita Rasoi and of the idols placed below

the fig and neem tree clearly indicated their exclusive and unimpeded

possession of the outer courtyard. All the evidence indicates that a

reasonable inference based on a preponderance of probabilities can be

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made that there was continuum of faith and belief of the Hindus that the

‗Garbh-Grih‘ was the place of birth of Lord Ram both prior to and after the

construction of the wall. The use of the area within the railing by the

Muslims was contentious and their access to the inner courtyard was

landlocked; the only access being through the two gates to the outer

portion and the area which were in the control of the Hindus.

O.15 Analysis of evidence in Suit 4

774. The case of the plaintiffs in Suit 4 is that upon its construction at the behest

of Babur in 1528, there was a dedication of the mosque for the purpose of

worship by Muslims. With respect to title, no documentary evidence exists or has

been adduced for the period prior to 1860. Before the High Court, as noticed

earlier submissions proceeded on the basis that there was no evidence either in

regard to possession or the offering of namaz prior to 1860 or at any rate before

1856-7. The evidence which has been adduced, must be analysed bearing in mind the

fundamental principle of law that revenue records do not confer title. In Jattu Ram v Hakam

Singh338, a two judge Bench held:

―3…The sole entry on which the appellate court placed

implicit reliance is by the Patwari in Jamabandi. It is settled law that the
Jamabandi entries are only for fiscal purpose and they create no title.‖
This decision was followed in Suraj Bhan v Financial Commissioner339, where

Justice C K Thakker speaking for a two judge Bench held:

―9…It is well settled that an entry in revenue records does

not confer title on a person whose name appears in record-
ofrights. It is settled law that entries in the revenue records or

338 (1993) 4 SCC 403

339 (2007) 6 SCC 186

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jamabandi have only ―fiscal purpose‖ i.e. payment of land

revenue, and no ownership is conferred on the basis of such
entries. So far as title to the property is concerned, it can only
be decided by a competent civil court (vide Jattu
Ram v. Hakam Singh [(1993) 4 SCC 403 : AIR 1994 SC
1653]).‖

775. No documentary evidence has been brought on the record indicating the

conferment of title in a form of the grant of the land underlying the mosque. The

documentary evidence on which reliance has been placed essentially consists of

grants which were made by the British Government for the upkeep and

maintenance of the mosque. These grants are stated to be in continuation of

those which have been made previously prior to the annexation of Oudh by the

colonial government. The register Mafiat which bears government orders dated

13 March 1860 and 29 June 1860 has been noticed in the judgment of Justice

Sudhir Agarwal as a document which is torn and the contents of which were not

legible. The grant for the upkeep and maintenance of the mosque was ―so long

the masjid is kept up and the Mohammedans conduct themselves properly.‖ This

document even if it is accepted as authentic indicates a grant for specific

purposes and does not confer the title to the disputed land. The register of

enquiry dated 14 March 1860 contains certain details of a rent-free grant and is

stated to be ―based on testimonies‖. However, it shows that ―the year and date

are not known‖. As regards the date of the grant, it has been stated to be of ―no

knowledge‖. There is a reference in the register to an enquiry into the rent-free

land (which) began in the year 1264 Fasli when riots broke out. The reference to

1264 Fasli corresponds to 1856-7 A.D. While the name of the donor is stated to

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be Babur, this account is based on testimony. Register no. 6(e) – conditional

exemption dated 29 June 1860-only indicates the names of individuals who were

holding the rent-free lands.

776. The next stage in the documentary evidence relates to the conversion of

the cash grant into the grant of revenue free land. As noted earlier, there is a

serious problem in regard to the lineage and this Court cannot proceed on the

basis of a claim made in the fourth generation with an unexplained break in the

intervening period of nearly 325 years. There is nothing to indicate that there was

any investigation into the correctness of the claim. Eventually, the cash payment

of Rs. 302.3.6 was commuted by the grant of lands in two villages in lieu of the

erstwhile payment. This is evidenced by the letter dated 25 August 1863 of the

Chief Commissioner Oudh to the Commissioner Faizabad Division and the order

dated 31 August 1863 of the Deputy Commissioner. The grant of 1870 states that

the cash nankar was being maintained so long as the assignee surrenders all the

previous sanads, titled deeds, and other documents relevant to the grant in

question.

The Nakal Khasra Abadi of 1931 indicates that Arazi number 583 is Nazul land.

While it makes a reference to the Masjid Pokhta Waqf Ahde Shahi, it also adverts

to the Chabutra which is prominently known as the Janmabhumi.

777. The documentary evidence indicates that the riots of 1856-7 led to the

colonial government erecting a wall with railings to bifurcate the areas of worship:

the Muslims within the inner courtyard and the Hindus in the outer courtyard.

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Evidently, prior to the setting up of the railing, there was no such clear-cut

demarcation and the Hindus and Muslims had offered worship within the

structure. The setting up and offering worship at the the Chabutra immediately

outside the railing and in close proximity to it is an indicator that the Hindus

asserted their right to worship at what they believed is the birth-place of Lord

Ram. The setting up of the Chabutra is proximate both in terms of distance and

time. In terms of time, the establishment of the Chabutra is an event which was

an immediate consequence of the setting up of the railing to bifurcate a

contiguous and consolidated area into the inner courtyard and outer courtyard.

Prior to the railing being erected there was no restriction on access for the Hindus

to offer worship inside the domed structure. The documentary evidence also

shows that the setting up of the railing did not as a matter of fact result in an

absolute division of the inner and outer courtyards as separate and identified

places of worship for the two communities. Soon after the incident of November

1858 in which the Nihang Singh is alleged to have organised a hawan puja and to have

erected a symbol of ―Sri Bhagwan‖ within the premises of the mosque is the commencement

of a series of episodes indicating that the exclusion of the Hindus from the inner courtyard was

neither accepted nor enforced as a matter of ground reality. Resistance was met to the

removal of the Nihang Singh. Eventually, in December 1858 it was recorded that the flag had

been uprooted from the masjid and the Nihang Singh had been ousted. Within a short span of

time in November 1860 came a complaint of Mir Rajjab Ali complaining of a new chabutra

being constructed in the graveyard. The complaint recorded that when Azaan is called by a

Moazzin, the Hindus begin to blow conch shells. The area was thus rife with contesting claims

over religious worship. Consistent with those claims, the record of contemporary date does not

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indicate the total exclusion of the Hindus from the inner courtyard despite the construction of

the railing. In March 1861, Mohd Asghar and Rajjab Ali joined in complaining against the

erection of a chabutra without permission near Babri Masjid. This led to the Subedar tendering

the report of the eviction of the individual who have done so. Again in 1866, there was a

complaint by the Mutawalli seeking the demolition of a new Kothari which was constructed for

placing idols inside the door of the Masjid where Bairagis had constructed a chabutra. On this

application, the Deputy Commissioner passed an order in October 1866 for its consignment to

the

records.

778. In 1868, the Muslims alleged encroachment on the north western corner of

the Masjid which was held not to have been proved. In 1870, the Mutawalli

sought an order of eviction against a Faqir from the graveyard and

complained of certain encroachments around the trees. An order was

passed thereon in August 1871, stating that the plaintiff had no right of

ownership over the graveyard in the courtyard in front of the door of the

Masjid. In 1873, there appears to have been a dispute in regard to the

placing of an idol on the chabutra.

779. In April 1877, the grant of permission by the Deputy Commissioner for the

construction of a new gate on the northern side (in addition to the pre-

existing gate on the eastern side) again led to a dispute. The creation of an

additional entry was justified by the Deputy Commissioner to safeguard

human safety since it appears that there was a rush of devotees. The

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complaint of the Muslims was dismissed and the opening of an additional

door on the northern side was

justified as being in the interest of public safety.

780. When in November 1883, the Mutawalli asserted the right to have the wall

of the mosque painted, the Assistant Commissioner, while restricting

Raghubar Das from carrying out repairs in the inner and outer part of the

compound directed the Mutawalli not to lock the outer door of the mosque

on the ground that the old existing orders must be complied with. The

course of the disputes between 1858 and 1883 thus indicates that the

setting up of the railing as a measure of allowing Muslim worship inside to

the railing and exclusion of Hindus from worshipping in the inner courtyard

was a matter of continuing dispute. The Muslims on their part had

complained of the setting up of the chabutra. However, the activities of the

Hindus in the outer courtyard continued and an important indicator of the

presence of Hindu devotees in large number was the opening of an

additional door in 1877. As regards the inner courtyard, it is evident this

was a matter of contestation between Hindus and Muslims, the Muslims

asserting it to be a place of worship and the Hindus periodically contesting

it by seeking entry as they had obtained prior to the setting up of the

railing. The riot of 1934 resulted in a considerable damage being caused to

the domes of the mosque and led to the imposition of fines on the Hindus

and Bairagis. The work of restoration was carried out at the cost of the

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British Government by a Muslim contractor. This coupled with the

documentary evidence pertaining to the arrears of salary of the

Pesh Imam would indicate that post 1934 there was no abandonment by the

Muslims of the mosque as a place for offering namaz. This would have continued

until 1949 though, as the Waqf Inspector notes in his report dated 12 December

1949, Muslims who went to pray in the mosque were being harassed by the

Hindus in the outer courtyard where many of them resided. Eventually, the events

immediately preceding the intervening night of 22/23 December 1949 led to the

placement of the idols on the pulpit below the central dome of the mosque.

781. From the documentary evidence, it emerges that:

(i) Prior to 1856-7 there was no exclusion of the Hindus from worshipping within

the precincts of the inner courtyard;

(ii) The conflagration of 1856-7 led to the setting up of the railing to provide a

bifurcation of the places of worship between the two communities;

(iii) The immediate consequence of the setting up of the railing was the continued

assertion of the right to worship by the Hindus who set up the

Chabutra in the immediate proximity of the railing;

(iv) Despite the existence of the railing, the exclusion of the Hindus from the inner

courtyard was a matter of contestation and at the very least was not absolute;

(v) As regards the outer courtyard it became the focal point of Hindu worship both

on the Ramchabutra as well as other religious structures within the outer

courtyard including Sita Rasoi. Though, the Hindus continued to worship at

the Ramchabutra which was in the outer courtyard, by the consistent pattern

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of their worship including the making of offerings to the ‗Garbh Grih‘ while

standing at the railing, there can be no manner of doubt that this was in

furtherance of their belief that the birth-place of Lord Ram was within the

precincts of and under the central dome of the mosque; and

(vi) The riots of 1934 and the events which led up to 22/23 December 1949

indicate that possession over the inner courtyard was a matter of serious

contestation often leading to violence by both parties and the Muslims did not

have exclusive possession over the inner courtyard. From the above

documentary evidence, it cannot be said that the Muslims have been able to

establish their possessory title to the disputed site as a composite whole.

O.16 The Muslim claim to possessory title

782. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the

plaintiffs in Suit 4, urged submissions on the effect of the existence and

destruction of a temple on the title asserted by the Sunni Central Waqf Board.

The submissions of Dr Dhavan have been formulated thus:

(i) The existence of a temple below the mosque pertaining to an earlier time

period is irrelevant to the question of title;

(ii) The ASI report, in any event is inconclusive on the question whether: (a)

an earlier structure existed at the site and was demolished for the

construction of a mosque; and

(b) whether or not that structure is a temple.

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(iii) The High Court has also accepted that the ASI report had not furnished a

categorical finding on whether the mosque was constructed by demolition

of a pre-existing structure;

(iv) No adverse inference could have been drawn against the Muslim parties

for failing to plead whether there was an earlier idgah or kanati masjid

below the structure of the mosque since:

(a) Such an enquiry could not have been conducted by Babur before

having the mosque constructed; and

(b) The High Court directed the ASI to conduct an investigation only

because the material which emerged from the gazetteers and historical

accounts was inconclusive.

Buttressing the submissions on the law pertaining to title, Dr Dhavan commended following

propositions for acceptance by the court:

(i) Possession creates a presumption of title, particularly if there is no better title

or any other claim is barred by limitation;

(ii) Where a person has possession with title, this will continue with use or the

inability to use;

(iii) In certain circumstances, possession may be sufficient to decide title;

(iv) The burden of proof is upon the person who asserts possession without title,

particularly having regard to the provisions of Section 110 of the Evidence Act;

(v) If a person concedes or acts in a manner that indicates a lack of possession

and performs of an act or makes an omission, this will amount to estoppel

under Section 115 of the Evidence Act;

(vi) Possession is sustained by animus possidendi; and

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(vii) The absence of a prayer or lesser prayer would not result in a loss of title and

title can be lost only on adverse possession beyond limitation;

In sum and substance, the basis of the claim of title, as alleged before this Court by

Dr Dhavan can be formulated thus:

(i) Babri masjid was constructed in 1528 under the command of Babur. The

maintenance and upkeep of the mosque was realised by a cash grant payable by

the royal treasury during the rule of Babur and the British administration continued

the grant;

(ii) Several attempts of trespass and encroachment by Sikhs and Hindus were

repulsed by the Muslims and even the authorities of the state protected their rights

by directing -

(a) Eviction of Hindu / Sikh squatters from the mosque; and

(b) Removal of offending constructions;

(iii) At least in 1885, the general belief of the Hindus was that the birth-place of

Lord Ram was at the Ramchabutra. This belief was noted in the Suit of
1885 in which there was a finding that the Hindus had no title over the Chabutra and

their rights at the highest were prescriptive in nature;

(iv) The Hindus have always referred to the disputed structure as a mosque and

recognised it as such;

(v) Muslims continuously offered prayers in the disputed structure, as is evident from:

(a) The agreement dated 25 July 1936 for payment of arrears and salary of the

Pesh Imam;

(b) Testimonies of witnesses recorded in the Shia/Sunni suit of 1941; and

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(c) Acceptance, during the course of the arguments by the plaintiffs of

Suit 5, that namaz was offered in the mosque until 16 December

1949;

(vi) The rights which the Hindus claim are based purely on illegal acts:

(a) Preventing or harassing Muslims when they proceeded to the mosque to offer

namaz;

(b) Destroying a part of the mosque in 1934 leading to repairs and the imposition

of fines on the Hindus;

(c) Desecration of the mosque on 22/23 December 1949; and

(d) Demolition of the mosque on 6 December 1992 in violation of the status quo

orders of this Court;

(vii) The disputed structure has in consequence always been a mosque which

remained in possession of Muslims from 1528 until its desecration on

22/23 December 1949.

783. This limb of the submission of Dr Dhavan is essentially founded on

possessory title. In the earlier analysis on the claim of an independent title, it has

been found that the Muslims have been unable to establish a specific grant of the

land underlying the mosque as a foundation of legal title during Muslims rule or

upon the transfer of power to the colonial administration after 1857. The

documentary evidence which has been relied upon consists of revenue records

pertaining to grants for the upkeep and maintenance of the mosque. Dr Dhavan

has however urged for the acceptance of the claim of the Muslims that they were

in possession of the inner and outer courtyard and the continuous nature of that

possession creates a presumption of title which the Hindus cannot displace.

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784. Section 110 of the Evidence Act 1872 provides thus:

―Section 110.- Burden of proof as to ownership - when the

question is whether any person is owner of anything of which
he is shown to be in possession, the burden of proving that he
is not the owner is on the person who affirms that he is not
the owner.‖

Section 110 deals with the burden of proof. Where the provision applies, the

burden of proving that another person who is in possession is not the owner lies

on the person who affirms against the ownership of that other person. But, for

Section 110 to be attracted, there must be a question as to whether any person is

the owner of anything and the ownership claimed must be that of which he is

shown to be in possession. Section 110 is based on the principle that title follows

possession. That is why the provision postulates that where a person is shown to

be in possession, and a question arises as to whether that person is the owner,

the law casts the burden of disproving ownership on the individual who affirms

that the person in possession is not the owner.

785. Several decisions of this Court have interpreted the provisions of Section 110. Section

110 is based on the principle that possession in and of itself may raise a presumption of

title. But this applies when the facts disclose no title in either of the disputants in which

case, as it is said, possession alone decides. Hence, on the other hand, it is also well-

settled that the presumption cannot be arise when the facts are known.

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In Nair Service Society Ltd. v K C Alexander340, Justice M Hidayatullah (as the

learned Chief Justice then was) speaking for a three judge Bench of this Court

held:

―17…That possession may prima facie raise a presumption

of title no one can deny but this presumption can hardly arise
when the facts are known. When the facts disclose no title in
either party, possession alone decides.‖

In M S Jagadambal v Southern Indian Education Trust341 , Justice K

Jagannatha Shetty, speaking for a two judge Bench of this Court held that

possession continues with the title holder unless and until the defendant acquires

title by adverse possession:

―18…The possession continues with the title holder unless

and until the defendant acquires title by adverse possession.
There would be no continuance of adverse possession when
the land remains submerged and when it is put out of use and
enjoyment. In such a case the party having title could claim
constructive possession provided the title had not been
extinguished by adverse possession before the last
submergence. There is no difference in principle between
seasonal submersion and one which continues for a length of
time.‖

In Chief Conservator of Forests, Govt of A P v Collector342, Justice Syed

Shah Mohammed Quadri, speaking for a two judge Bench of this Court held:

―20…presumption, which is rebuttable, is attracted when the

possession is prima facie lawful and when the contesting
party has no title.‖

In State of A P v Star Bone Mill & Fertiliser Company 343, this Court held that

the object of Section 110 is based on public policy. The object is to prevent

340 AIR 1968 SC 1165

341 1988 (Supp) SCC 144
342 (2003) 3 SSC 472
343 (2013) 9 SCC 319

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persons from committing a breach of peace by taking the law into their own

hands however good their title may be over the land in question. This object

underlies provisions such as Section 6 of the Specific Relief Act 1963, Section

145 of the Code of Criminal Procedure 1973 and Sections 154 and 158 of the

Indian Penal Code 1860. Justice B S Chauhan speaking for a two judge Bench of

this Court explained in the above decision that:

―21…The said presumption is read under Section 114 of

the Evidence Act, and applies only in a case where there is
either no proof, or very little proof of ownership on either
side. The maxim ―possession follows title‖ is applicable in
cases where proof of actual possession cannot reasonably be
expected, for instance, in the case of wastelands, or where
nothing is known about possession one way or another.
Presumption of title as a result of possession, can arise
only where facts disclose that no title vests in any party.
Possession of the plaintiff is not prima facie wrongful, and title
of the plaintiff is not proved. It certainly does not mean that
because a man has title over some land, he is necessarily in
possession of it. It in fact means, that if at any time a man
with title was in possession of the said property, the law
allows the presumption that such possession was in
continuation of the title vested in him. A person must
establish that he has continued possession of the suit
property, while the other side claiming title, must make out a
case of trespass/encroachment, etc. Where the apparent title
is with the plaintiffs, it is incumbent upon the defendant, that
in order to displace this claim of apparent title and to establish
beneficial title in himself, he must establish by way of
satisfactory evidence, circumstances that favour his version.
Even, a revenue record is not a document of title. It merely
raises a presumption in regard to possession. Presumption of
possession and/or continuity thereof, both forward and
backward, can also be raised under Section 110 of the
Evidence Act.‖
(Emphasis supplied)

In assessing this limb of the submission on the applicability of Section 110 the

crucial test is whether the disputed site represents ―anything of which‖ the

Muslim parties are ―shown to be in possession‖. Unless the ‗shown to be in

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possession‘ requirement is fulfilled, the presumption would not arise and there

would be no question of placing the burden of establishing that the plaintiffs in

Suit 4 are not the owners on the contesting Hindu parties.

Analysis on the Muslim claim of possession

786. The case of the plaintiffs in Suit 4 has to be evaluated on the basis of the

entirety of the evidence on the record to deduce whether possession has been

established on a preponderance of probabilities. The evidence reveals several

significant features which must be noted:

(i) Though, the case of the plaintiffs in Suit 4 is that the mosque was

constructed in 1528 by or at the behest of Babur, there is no account by

them of possession, use or offer of namaz in the mosque between the date

of construction and 1856-7. For a period of over 325 years which elapsed

since the date of the construction of the mosque until the setting up of a

grill-brick wall by the British, the Muslims have not adduced evidence to

establish the exercise of possessory control over the disputed site. Nor is

there any account in the evidence of the offering of namaz in the mosque,

over this period;

(ii) On the contrary, the travelogues (chiefly Tieffenthaler and Montgomery

Martin) provide a detailed account both of the faith and belief of the

Hindus based on the sanctity which they ascribed to the place of birth of

Lord Ram and of the actual worship by the Hindus at the Janmasthan;

(iii) William Finch (1608-11) and Tieffenthaler who visited India between

1743-1785 provided an account of Ayodhya. Conspicuous in both the

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accounts are references to worship by the Hindus to Lord Ram. The

positive account of Hindu worship to Lord Ram is of probative value.

Tieffenthaler specifically refers to Hindu places of worship including Sita

Rasoi, Swargdwar and the Bedi or cradle symbolising the birth of Lord

Ram. The account refers to religious festivals where during the course of

which Hindu devotees would throng for worship. Tieffenthaler‘s account in

the eighteenth century is prior to the construction of the grill–brick wall in

front of the mosque. Tieffenthaler refers to ―a square box raised 5 inches

above the ground with borders made of lime with the length of more than 5

ells and the maximum width of 4 ells‖, which the Hindus called the Bedi or

cradle. This, as he notes, was the site of the house where Lord Vishnu was

born in the form of the Lord Ram. This, as he notes, is where it was

believed that either Aurangzeb or (according to others) Babur got the place

razed. Tieffenthaler, however, noted that in the place where the ―native

house‖ of Lord Ram existed the Hindus circumambulate three times and

prostrate on the floor. This account of Tieffenthaler refers to a focal point of

worship namely the birth-place of Lord Ram around which worship took

place and the Hindus circumambulated and prostrated;

(iv) The communal riots that took place in 1856-7 resulted in the colonial

administration setting up a grill-brick wall to bring about a measure of

peace between the conflicting claims of the two communities. The

immediate aftermath of the railing led to the dispute over the Ramchabutra,

which was erected right outside the railing and from where the Hindus

sought to offer worship to Lord Ram. The time of the setting up of the

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Chabutra, the place of its location and the offer of worship to Lord Ram on

Chabutra are pointers in the direction of the Hindus continuing to offer

worship immediately outside the railing when faced with a possible

exclusion from the inner courtyard;

(v) The construction of the grill-brick wall during the colonial administration did

not constitute any determination of title as between the Hindus and the

Muslims but was a measure intended to maintain public peace and safety

having regard to the incidents which had taken place in 1856-7 resulting in

a loss of life;

(vi) That the setting up of a buffer in the form of the grill-brick wall did not

amount to an absolute exclusion appears from sporadic incidents such as

the incident involving the setting up of a flag and the performance of

hawan and puja by the Nihang Singh within the precincts of the mosque.

Nihang Singh was evicted following the intervention of the authorities of the

state;

(vii) Until 1877, there was only one entry through which access could be gained

to the inner courtyard which was the door on the eastern side called

Hanumat Dwar. On gaining entry, the Hindus had several places of worship

such as the Ramchabutra and Sita Rasoi as well as the Bhandar which

indicated that insofar as the outer courtyard is concerned, the Hindus were

in settled possession;

(viii) The opening of an additional door on the northern side which came to be

known as Singh Dwar was warranted as a measure to ensure the safe

passage of a large number of pilgrims who entered the premises to offer

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worship. Objections to the opening of Singh Dwar were dealt with and

resulted in their rejection as a consequence of which the opening of an

additional door providing access became an established fact;

(ix) Disputes between the Hindus and the Muslims continued to persist,

indicating the litigious nature of the respective claims, in respect of the

inner courtyard;

(x) In 1934, there was yet another communal riot during the course of which

the domed structure of the mosque was damaged. This led to the

imposition of a fine on the Hindu residents of Ayodhya and the work of

restoration being carried out at the expense of the colonial administration

through a Muslim contractor. This indicates that while the Hindus had

continued to offer worship continuously in the outer courtyard, there was

no abandonment of the claim by the Muslims of the status of the structure

inside the inner courtyard as a mosque. After 1934, there is documentary

material to indicate that arrangements were made for the appointment of a

Pesh Imam and Mutawalli for the mosque which would belie the notion that

there was an abandonment of the mosque;

(xi) After 1934, evidence indicates that Muslim worship in the form of namaz

had reduced as a result of the obstructions in their access to the inner

courtyard. By 16 December 1949 (the last Friday namaz) the mosque was

being used for the purposes of Friday namaz. The circumstances bearing

upon the restoration of the damage which was done to the mosque in

1934, availing of the services of the Pesh Imam and the offering of namaz

albeit to a reduced extent are circumstances which point to a reasonable

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inference that there was no total ouster of the Muslims from the inner

structure prior to 22/23 December 1949 though their access was

intermittent and interrupted; and

(xii) On 22/23 December 1949, idols were installed below the central dome of

the inner structure which, according to the Muslims, led to the desecration

of the mosque. Prior to this, the last namaz was offered on Friday, 16

December 1949. The Friday namaz due on 23 December 1949 could not

be offered due to the intervening desecration of the mosque.

The Sunni Central Waqf Board‘s case of possession to attract the applicability of Section

110 of the Evidence Act must therefore be assessed from two

perspectives: First, insofar as the outer courtyard is concerned, it is impossible to accept

on the basis of a preponderance of probabilities that the Muslims were in possession. On

the contrary, the establishment of Hindu places of worship in the outer courtyard clearly

belies such a claim. Second, insofar as the inner courtyard is concerned, the claim of the

Muslims must necessarily be assessed with reference to various time periods namely (i)

prior to 1856; (ii) between 1856 and 1934; and (iii) after 1934.

787. The Muslim account of worship prior to 1856 is conspicuously silent as

opposed to the accounts of worship being offered by the Hindus. Post the setting

up of the wall and railing, it is evident that there were obstructions which arose in

the continued worship of the Muslims in the inner courtyard which is evidenced

by numerous proceedings as well as by the riots of 1934. Yet, the manner in

which the restoration of the mosque took place after the riots and the

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arrangements in particular for the services of the Pesh Imam indicate that the

obstruction notwithstanding, some form of namaz continued to be offered in the

mosque until 16 December 1949. While, as the Waqf Inspector indicated, the

process of namaz was being obstructed and the worshippers were harassed,

there is no evidence to show the abandonment of the claims by the Muslims. In

fact, the documentary and oral evidence indicates that Friday namaz was

intermittently being offered until 16 December 1949. Though, the claim of the

Muslims over the inner courtyard was not abandoned, yet as the evidence

indicates, this was a matter of contestation and dispute.

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P. Analysis on title

P.1 Marshalling the evidence in Suit 4 and Suit 5

788. A stage has now been reached to marshal together the evidence on the

claim of title in Suit 4 and Suit 5 to pave the way for the ultimate determination of

the relief to be granted.

I The report of the ASI indicates the following position:

(i) Archaeological finds in the area of excavation reveal significant

traces of successive civilisations, commencing with the age of the

North Black Polished Ware traceable to the second century B.C.;

(ii) The excavation by the ASI has revealed the existence of a

preexisting underlying structure dating back to the twelfth century.

The structure has large dimensions, evident from the fact that there

were

85 pillar bases comprised in 17 rows each of five pillar bases;

(iii) On a preponderance of probabilities, the archaeological findings on

the nature of the underlying structure indicate it to be of Hindu

religious origin, dating to twelfth century A.D.;

(iv) The mosque in dispute was constructed upon the foundation of the

pre-existing structure. The construction of the mosque has taken

place in such a manner as to obviate an independent foundation by

utilising the walls of the pre-existing structure; and

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(v) The layered excavation at the site of excavation has also revealed

the existence of a circular shrine together with a makara pranala

indicative of Hindu worship dating back to the eighth to tenth

century.

A reasonable inference can be drawn on the basis of the standard of proof which

governs civil trials that:

(i) The foundation of the mosque is based on the walls of a large pre-existing

structure;

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

(iii) The underlying structure which provided the foundations of the mosque

together with its architectural features and recoveries are suggestive of a

Hindu religious origin comparable to temple excavations in the region and

pertaining to the era.

II The conclusion in the ASI report about the remains of an underlying

structure of a Hindu religious origin symbolic of temple architecture of the

twelfth century A.D. must however be read contextually with the following

caveats:

(i) While the ASI report has found the existence of ruins of a preexisting

structure, the report does not provide:

(a) The reason for the destruction of the pre-existing structure;

and

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(b) Whether the earlier structure was demolished for the purpose

of the construction of the mosque. (ii) Since the ASI report

dates the underlying structure to the twelfth century, there is a

time gap of about four centuries between the date of the

underlying structure and the construction of the mosque.

No evidence is available to explain what transpired in the course of

the intervening period of nearly four centuries;

(iii) The ASI report does not conclude that the remnants of the pre-

existing structure were used for the purpose of constructing the

mosque (apart, that is, from the construction of the mosque on the

foundation of the erstwhile structure); and

(iv) The pillars that were used in the construction of the mosque were

black Kasauti stone pillars. ASI has found no evidence to show that

these Kasauti pillars are relatable to the underlying pillar bases

found during the course of excavation in the structure below the

mosque.

III A finding of title cannot be based in law on the archaeological findings

which have been arrived at by ASI. Between the twelfth century to which

the underlying structure is dated and the construction of the mosque in the

sixteenth century, there is an intervening period of four centuries. No

evidence has been placed on the record in relation to the course of human

history between the twelfth and sixteen centuries. No evidence is available

in a case of this antiquity on (i) the cause of destruction of the underlying

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structure; and (ii) whether the pre-existing structure was demolished for the

construction of the mosque. Title to the land must be decided on settled

legal principles and applying evidentiary standards which govern a civil

trial.

IV Historical records of travellers (chiefly Tieffenthaler and the account of

Montgomery Martin in the eighteenth century) indicate:

(i) The existence of the faith and belief of the Hindus that the disputed site

was the birth-place of Lord Ram;

(ii) Identifiable places of offering worship by the Hindus including Sita Rasoi,

Swargdwar and the Bedi (cradle) symbolising the birth of Lord Ram in and

around the disputed site;

(iii) Prevalence of the practice of worship by pilgrims at the disputed site

including by parikrama (circumambulation) and the presence of large

congregations of devotees on the occasion of religious festivals; and

(iv) The historical presence of worshippers and the existence of worship at the

disputed site even prior to the annexation of Oudh by the British and the

construction of a brick-grill wall in 1857.

Beyond the above observations, the accounts of the travellers must be read with

circumspection. Their personal observations must carefully be sifted from

hearsay – matters of legend and lore. Consulting their accounts on matters of

public history is distinct from evidence on a matter of title. An adjudication of title

has to be deduced on the basis of evidence sustainable in a court of law, which

has withstood the searching scrutiny of cross-examination. Similarly, the contents

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of gazetteers can at best provide corroborative material to evidence which

emerges from the record. The court must be circumspect in drawing negative

inferences from what a traveller may not have seen or observed. Title cannot be

established on the basis of faith and belief above. Faith and belief are indicators

towards patterns of worship at the site on the basis of which claims of possession

are asserted. The court has evaluated the rival claims to possessory title in a

situation in which the state has expressly stated in its written statement that it

claims no interest in the land.

V The evidence indicates that despite the existence of a mosque at the site,

Hindu worship at the place believed to be the birth-place of Lord Ram was

not restricted. The existence of an Islamic structure at a place considered

sacrosanct by the Hindus did not stop them from continuing their worship

at the disputed site and within the precincts of the structure prior to the

incidents of 1856-7. The physical structure of an Islamic mosque did not

shake the faith and belief of Hindus that Lord Ram was born at the

disputed site. On the other hand, learned counsel fairly stated that the

evidence relied on by the Sunni Central Waqf Board to establish the

offering of namaz by the Muslim residents commences from around 1856-

7;

VI The setting up of a railing in 1857 by the British around the disputed

structure of the mosque took place in the backdrop of a contestation and

disputes over the claim of the Hindus to worship inside the precincts of the

mosque. This furnished the context for the riots which took place between

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Hindus and Muslims in 1856-7. The construction of a grick-brick wall by the

colonial administration was intended to ensure peace between the two

communities with respect to a contested place of worship. The grill-brick

wall did not constitute either a subdivision of the disputed site which was

one composite property, nor did it amount to a determination of title by the

colonial administration;

VII Proximate in time after the setting up of the railing, the Ramchabutra was

set up in or about 1857. Ramchabutra was set up in close physical

proximity to the railing. Essentially, the setting up of Ramchabutra within a

hundred feet or thereabouts of the inner dome must be seen in the

historical context as an expression or assertion of the Hindu right to

worship at the birth-place of Lord Ram. Even after the construction of the

dividing wall by the British, the Hindus continued to assert their right to

pray below the central dome. This emerges from the evidentiary record

indicating acts of individuals in trying to set up idols and perform puja both

within and outside the precincts of the inner courtyard. Even after the

setting up of the Ramchabutra, pilgrims used to pay obeisance and make

offerings to what they believed to be the ‗Garbh Grih‘ located inside the

three domed structure while standing at the iron railing which divided the

inner and outer courtyards. There is no evidence to the contrary by the

Muslims to indicate that their possession of the disputed structure of the

mosque was exclusive and that the offering of namaz was exclusionary of

the Hindus;

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VIII Hindu worship at Ramchabutra, Sita Rasoi and at other religious places

including the setting up of a Bhandar clearly indicated their open, exclusive

and unimpeded possession of the outer courtyard. The Muslims have not

been in possession of the outer courtyard. Despite the construction of the

wall in 1858 by the British and the setting up of the Ramchabutra in close-

proximity of the inner dome, Hindus continued to assert their right to pray

inside the three-domed structure;

IX In or about 1877, at the behest of the Hindus, another door to the outer

courtyard was allowed to be opened by the administration on the northern

side

(Sing Dwar), in addition to the existing door on the east (Hanumat Dwar). The

Deputy Commissioner declined to entertain a complaint against the opening

made in the wall. The Commissioner while dismissing the appeal held that the

opening up of the door was in public interest. The opening of an additional door

with the permission of the British administration indicates recognition of the

presence of a large congregation of Hindu devotees necessitating additional

access to the site in the interest of public peace and safety;

X Testimonies of both Hindu and Muslim witnesses indicate that on religious

occasions and festivals such as Ram Navami, Sawan Jhoola, Kartik

Poornima, Parikrama Mela and Ram Vivah, large congregations of Hindu

devotees visited the disputed premises for darshan. The oral testimony of

the Hindu devotees establishes the pattern of worship and prayer at Sita

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Rasoi, Ramchabutra and towards the ‗Garb Grih‘, while standing at the

railing of the structure of the brick wall;

XI Hindu witnesses have indicated that Hindus used to offer prayer to the

Kasauti stone pillars placed inside the mosque. Muslim witnesses have

acknowledged the presence of symbols of Hindu religious significance

both inside and outside the mosque. Among them, is the depiction of

Varah, Jai-Vijay and Garud outside the three domed structure. They are

suggestive not merely of the existence of the faith and belief but of actual

worship down the centuries;

XII There can no denying the existence of the structure of the mosque since

its construction in the sixteenth century with the inscription of ‗Allah‘ on the

structure. The genesis of the communal incident of 1856-7 lies in the

contestation between the two communities over worship. The setting up of

the railing in 18567 was an attempt by the administration to provide a

measure of bifurcation to observe religious worship – namaz by the

Muslims inside the railing within the domed structure of the mosque and

worship by the Hindus outside the railing. Attempts by the Sikhs or faqirs to

enter into the mosque and set up religious symbols for puja were resisted

by the Muslims, resulting in the administration evicting the occupier;

XIII After the construction of the grill-brick wall in 1857, there is evidence on

record to show the exclusive and unimpeded possession of the Hindus and

the offering of worship in the outer courtyard. Entry into the three domed

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structure was possible only by seeking access through either of the two

doors on the eastern and northern sides of the outer courtyard which were

under the control of the Hindu devotees;

XIV On a preponderance of probabilities, there is no evidence to establish that

the Muslims abandoned the mosque or ceased to perform namaz in spite

of the contestation over their possession of the inner courtyard after 1858.

Oral evidence indicates the continuation of namaz;

XV The contestation over the possession of the inner courtyard became the

centre of the communal conflict of 1934 during the course of which the

domes of the mosque sustained damage as did the structure. The repair

and renovation of the mosque following the riots of 1934 at the expense of

the British administration through the agency of a Muslim contractor is

indicative of the fact the despite the disputes between the two

communities, the structure of the mosque continued to exist as did the

assertion of the Muslims of their right to pray. Namaz appears to have

been offered within the mosque after 1934 though, by the time of incident

of

22/23 December 1949, only Friday namaz was being offered. The reports of the

Waqf Inspector of December 1949 indicate that the Sadhus and Bairagis who

worshipped and resided in the outer courtyard obstructed Muslims from passing

through the courtyard, which was under their control, for namaz within the

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mosque. Hence the Waqf Inspector noted that worship within the mosque was

possible on Fridays with the assistance of the police;

XVI The events preceding 22/23 December 1949 indicate the build-up of a

large presence of Bairagis in the outer courtyard and the expression of his

apprehension by the Superintendent of Police that the Hindus would seek

forcible entry into the precincts of the mosque to install idols. In spite of

written intimations to him, the Deputy Commissioner and District

Magistrate (K K Nayyar) paid no heed and rejected the apprehension of

the Superintendent of Police to the safety of the mosque as baseless. The

apprehension was borne out by the incident which took place on the night

between 22/23 December 1949, when a group of fifty to sixty persons

installed idols on the pulpit of the mosque below the central dome. This led

to the desecration of the mosque and the ouster of the Muslims otherwise

than by the due process of law. The inner courtyard was thereafter

attached in proceedings under Section 145 CrPC 1898 on 29 December

1949 and the receiver took possession;

XVII On 6 December 1992, the structure of the mosque was brought down and

the mosque was destroyed. The destruction of the mosque took place in

breach of the order of status quo and an assurance given to this Court.

The destruction of the mosque and the obliteration of the Islamic structure

was an egregious

violation of the rule of law;

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XVIII The net result, as it emerges from the evidentiary record is thus:

(i) The disputed site is one composite whole. The railing set up in

1856-7 did not either bring about a sub-division of the land or any

determination of title;

(ii) The Sunni Central Waqf Board has not established its case of a

dedication by user;

(iii) The alternate plea of adverse possession has not been established

by the Sunni Central Waqf Board as it failed to meet the

requirements of adverse possession;

(iv) The Hindus have been in exclusive and unimpeded possession of

the outer courtyard where they have continued worship;

(v) The inner courtyard has been a contested site with conflicting claims

of the Hindus and Muslims;

(vi) The existence of the structure of the mosque until 6 December 1992

does not admit any contestation. The submission that the mosque

did not accord with Islamic tenets stands rejected. The evidence

indicates that there was no abandonment of the mosque by

Muslims. Namaz was observed on Fridays towards December 1949,

the last namaz being on 16 December 1949;

(vii) The damage to the mosque in 1934, its desecration in 1949 leading

to the ouster of the Muslims and the eventual destruction on 6

December 1992 constituted a serious violation of the rule of law;

and

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(viii) Consistent with the principles of justice, equity and good

conscience, both Suits 4 and 5 will have to be decreed and the relief

moulded in a manner which preserves the constitutional values of

justice, fraternity, human dignity and the equality of religious belief.

XVIII The Hindus have established a clear case of a possessory title to the

outside courtyard by virtue of long, continued and unimpeded worship at the

Ramchabutra and other objects of religious signficance. The Hindus and the

Muslims have contested claims to the offering worship within the three domed

structure in the inner courtyard. The assertion by the Hindus of their entitlement

to offer worship inside has been contested by the Muslims.

Legality of the decree for partition by the High Court

789. The High Court on a finding that Hindus and Muslims were in joint

possession directed a three-way bifurcation of the disputed site, one third

each being assigned to the Muslims, Hindus and Nirmohi Akhara. Justice

S U Khan held that title follows possession and based on the provisions of

Section 110 of the Evidence Act came to the conclusion that the disputed

site should be equally distributed between the three parties. Justice Sudhir

Agarwal held that the area under the central dome of the disputed

structure is believed to be and worshipped by the Hindus as the place of

birth of Lord Ram. This part of the land, he held, constitutes the deity

called ‗Sri Ramjanmsthan‘ which has specific significance to the Hindus.

Insofar as the other land within the inner courtyard is concerned, Justice

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Agarwal held that it has been continuously used by members of both

communities for prayer and worship, noticing that the prayer for relief in

Suit 5 had been ―worded in a manner showing that the same has not

been asked from the Court but has been left to the discretion of the Court if

it finds expedient‖. Justice Agarwal held that in order to do complete justice

and to avoid a

multiplicity of litigation, it was open to the court to mould the relief under Order VII

Rule 7 of the CPC. Justice Agarwal therefore also joined in directing a three-way

bifurcation in terms of a preliminary decree. Justice D V Sharma, decreed Suit 5

in its entirety.

790. Mr K Parasaran, learned Senior Counsel, appearing for the plaintiffs in Suit

5, argued that in attempting to mould the relief ―to do complete justice‖, the High

Court assumed a jurisdiction which did not vest in it; such a power, it was urged,

lies in the exclusive jurisdiction of this Court under Article 142 of the Constitution.

791. In assessing the correctness of the decree of the High Court, it must be

noted at the outset that the High Court was not seized of a suit for partition.

In a suit for partition, it is trite law that every party is both a plaintiff and

defendant. The High Court was hearing: (i) a suit by a worshipper seeking

the enforcement of the right to pray (Suit 1); (ii) a suit by Nirmohi Akhara

asserting shebaiti rights to the management and charge of the temple (Suit

3); (iii) a declaratory suit on title by the Sunni Central Waqf Board and

Muslims (Suit 4); and (iv) a suit for a declaration on behalf of the Hindu

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deities in which an injunction has also been sought restraining any

obstruction with the construction of a temple (Suit 5). The High Court was

called upon to decide the question of title particularly in the declaratory

suits, Suits 4 and 5.

792. In Srinivas Ram Kumar v Mahabir Prasad402, a three judge Bench of this

Court held that it is not open to the court to grant relief to the plaintiff on a

case for which there is no basis in the pleadings. Justice B K Mukherjea

held:

―9...The question, however, arises whether, in the absence

of any such alternative case in the plaint it is open to the
court to give him relief on that basis. The rule undoubtedly is
that the court cannot grant relief to the plaintiff on a case for
which there was no foundation in the pleadings and which
the other side was not called upon or had an opportunity to
meet.‖

This principle was reiterated in the judgment of the Constitution Bench in Sri

Venkataramana Devaru v State of Mysore403, Justice Venkatarama Aiyar,

speaking for this Court held:

―The object of requiring a party to put forward his pleas in
the pleadings is to enable the opposite party to controvert them and to
adduce evidence in support of his case. And it would be neither legal nor just
to refer to evidence adduced with reference to a matter which was actually in
issue and on the basis of that evidence, to come to a finding on a matter
which was not in issue, and decide the rights of parties on the basis of that
finding.‖

The High Court has adopted a path which was not open to it in terms of the

principles formulated above. It granted reliefs which were not the subject matter

of the prayers in the suits. In the process of doing so, it proceeded to assume the

jurisdiction of a civil court in a suit for partition, which the suits before it were not.

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Order VII Rule 7 of the CPC provides thus:

402
1951 SCR 277
403
1958 SCR 895
―7. Relief to be specifically stated- Every plaint shall state
specifically the relief which the plaintiff claims either simply or
in the alternative, and it shall not be necessary to ask for
general or other relief which may always be given as the
Court may think just to the same extent as if it had been
asked for. And the same rule shall apply to any relief claimed
by the defendant in his written statement.‖

The above provision requires a plaintiff to specifically claim either simply or in the

alternative the relief, which is sought. However, it clarifies that it is not necessary

to ask for general and other reliefs which may always be given in the discretion of

the court. This provision does not entitle the court in a civil trial to embark upon

the exercise of recasting virtually the frame of a suit, which was undertaken by

the High Court. There was no basis in the pleadings before the High Court and

certainly no warrant in the reliefs which were claimed to direct a division of the

land in the manner that a court would do in a suit for partition.

793. As Justice S B Sinha held while speaking for a two judge Bench of this Court

in Shiv Kumar Sharma v Santosh Kumari344:

―27. A court of law cannot exercise its discretionary

jurisdiction dehors the statutory law. Its discretion must be
exercised in terms of the existing statute.‖

[See also in this context the judgment of Justice Ashok Bhan in Shamsu Suhara

Beevi v G Alex345].

344 (2007) 8 SCC 600

345 (2004) 8 SCC 569 at paragraph 11

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In Om Prakash v Ram Kumar346, Justice M Fathima Beevi speaking for a three

judge Bench held:

―4…A party cannot be granted a relief which is not claimed,

if the circumstance of the case are such that the granting of
such relief would result in serious prejudice to the interested
party and deprive him of the valuable rights under the
statute.‖

The High Court has completely erred in granting relief which lay outside the ambit

of the pleadings and the cases set up by the plaintiffs in Suits 3, 4 and 5.

794. There is another serious flaw in the entire approach of the High Court in

granting relief of a three-way bifurcation of the disputed site. Having come to the

conclusion that Suit 3 (filed by Nirmohi Akhara) and Suit 4 (filed by Sunni Central

Waqf Board) were barred by limitation, the High Court proceeded to grant relief in

Suit 5 to the plaintiffs in Suits 3 and 4. This defies logic and is contrary to settled

principles of law. Moreover, the claim by the Nirmohi Akhara was as a shebait

who claimed a decree for management and charge. On its own case, Nirmohi

Akhara could not have been granted an independent share of the land. By this

judgment, the finding of the High Court that the suit of Nirmohi Akhara was barred

by limitation has been upheld but the finding in regard to the bar of limitation

being attracted to Suit 4 has been reversed. This aspect will be dealt with while

analysing the final relief which will be granted.

346 (1991) 1 SCC 441

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P.2 Conclusion on title

795. The facts, evidence and oral arguments of the present case have

traversed the realms of history, archaeology, religion and the law. The law must

stand apart from political contestations over history, ideology and religion. For a

case replete with references to archaeological foundations, we must remember

that it is the law which provides the edifice upon which our multicultural society

rests. The law forms the ground upon which, multiple strands of history, ideology

and religion can compete. By determining their limits, this Court as the final

arbiter must preserve the sense of balance that the beliefs of one citizen do not

interfere with or dominate the freedoms and beliefs of another. On 15 August

1947, India as a nation realised the vision of self-determination. On 26 January

1950 we gave ourselves the Constitution of India, as an unwavering commitment

to the values which define our society. At the heart of the Constitution is a

commitment to equality upheld and enforced by the rule of law. Under our

Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance

are both subject to the law and equal before the law. Every judge of this Court is

not merely tasked with but sworn to uphold the Constitution and its values. The

Constitution does not make a distinction between the faith and belief of one

religion and another. All forms of belief, worship and prayer are equal. Those

whose duty it is to interpret the Constitution, enforce it and engage with it can

ignore this only to the peril of our society and nation. The Constitution speaks to

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the judges who interpret it, to those who govern who must enforce it, but above

all, to the citizens who engage with it as an inseparable feature of their lives.

796. In the present case, this Court is tasked with an adjudicatory task of unique

dimension. The dispute is over immovable property. The court does not decide

title on the basis of faith or belief but on the basis of evidence. The law provides

us with parameters as clear but as profound as ownership and possession. In

deciding title to the disputed property, the court applies settled principles of

evidence to adjudicate upon which party has established a claim to the

immovable property.

797. On the balance of probabilities, there is clear evidence to indicate that the

worship by the Hindus in the outer courtyard continued unimpeded in spite of the

setting up of a grill-brick wall in 1857. Their possession of the outer courtyard

stands established together with the incidents attaching to their control over it.

798. As regards the inner courtyard, there is evidence on a preponderance of

probabilities to establish worship by the Hindus prior to the annexation of Oudh

by the British in 1857. The Muslims have offered no evidence to indicate that they

were in exclusive possession of the inner structure prior to 1857 since the date of

the construction in the sixteenth century. After the setting up of the grill-brick wall,

the structure of the mosque continued to exist and there is evidence to indicate

that namaz was offered within its precincts. The report of the Waqf Inspector of

December 1949 indicates that Muslims were being obstructed in free and

unimpeded access to mosque for the purposes of offering namaz. However,

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there is evidence to show that namaz was offered in the structure of the mosque

and the last Friday namaz was on 16 December 1949. The exclusion of the

Muslims from worship and possession took place on the intervening night
between 22/23 December 1949 when the mosque was desecrated by the

installation of Hindu idols. The ouster of the Muslims on that occasion was not

through any lawful authority but through an act which was calculated to deprive

them of their place of worship. After the proceedings under Section 145 of CrPC

1898 were initiated and a receiver was appointed following the attachment of the

inner courtyard, worship of the Hindu idols was permitted. During the pendency of

the suits, the entire structure of the mosque was brought down in a calculated act

of destroying a place of public worship. The Muslims have been wrongly deprived

of a mosque which had been constructed well over 450 years ago.

799. We have already concluded that the three-way bifurcation by the High

Court was legally unsustainable. Even as a matter of maintaining public peace

and tranquillity, the solution which commended itself to the High Court is not

feasible. The disputed site admeasures all of 1500 square yards. Dividing the

land will not subserve the interest of either of the parties or secure a lasting

sense of peace and tranquillity.

800. Suit 5 has been held to be maintainable at the behest of the first plaintiff

(the deity of Lord Ram) who is a juristic person. The third plaintiff (next friend)

has been held to be entitled to represent the the first plaintiff. We are of the view

that on the one hand a decree must ensue in Suit 5, Suit 4 must also be partly

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decreed by directing the allotment of alternate land to the Muslims for the

construction of a mosque and associated activities. The allotment of land to the

Muslims is necessary because though on a balance of probabilities, the evidence

in respect of the possessory claim of the Hindus to the composite whole of the

disputed property stands on a better footing than the evidence adduced by the

Muslims, the Muslims were dispossessed upon the desecration of the mosque on

22/23 December 1949 which was ultimately destroyed on 6 December 1992.

There was no abandonment of the mosque by the Muslims. This Court in the

exercise of its powers under Article 142 of the Constitution must ensure that a

wrong committed must be remedied. Justice would not prevail if the Court were to

overlook the entitlement of the Muslims who have been deprived of the structure

of the mosque through means which should not have been employed in a secular

nation committed to the rule of law. The Constitution postulates the equality of all

faiths. Tolerance and mutual co-existnce nourish the secular commitment of our

nation and its people.

801. The area of the composite site admeasures about 1500 square yards.

While determining the area of land to be allotted, it is necessary to provide

restitution to the Muslim community for the unlawful destruction of their place of

worship. Having weighed the nature of the relief which should be granted to the

Muslims, we direct that land admeasuring 5 acres be allotted to the Sunni Central

Waqf Board either by the Central Government out of the acquired land or by the

Government of Uttar Pradesh within the city of Ayodhya. This exercise, and the

consequent handing over of the land to the Sunni Central Waqf Board, shall be

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conducted simultaneously with the handing over of the disputed site comprising

of the inner and outer courtyards as a consequence of the decree in Suit 5. Suit 4

shall stand decreed in the above terms.

802. Section 6 of the Acquisition of Certain Area at Ayodhya Act 1993

empowers the Central Government to direct that the right, title and interest in

relation to the area or any part thereof, instead of continuing to vest in the Central

Government shall vest in the authority or body or trustees of any trust which is

willing to comply with the terms and conditions as government may impose. 407

Section 7(1) provides that the property vested in the Central Government under

Section 3, shall be maintained by the government or by any person or trustees of

any trust, authorities in this behalf.408

803. We are of the view that it would be necessary to direct the Central

Government to frame a scheme in exercise of the powers conferred upon it by

Sections 6 and 7 to set up a trust or any other appropriate mechanism to whom

the land would be handed over in terms of the decree in Suit 5. The scheme shall

incorporate all provisions necessary to vest power and authority in relation to the

management of the trust or the body chosen for the vesting of the land.

407 6. Power of Central Government to direct vesting of the area in another authority or body or trust.—(1)
Notwithstanding anything contained in Sections 3, 4, 5 and 7, the Central Government may, if it is satisfied that
any authority or other body, or trustees of any trust, set up on or after the commencement of this Act is or are
willing to comply with such terms and conditions as that Government may think fit to impose, direct by notification
in the Official Gazette, that the right, title and interest or any of them in reason to the area or any part thereof,
instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust
either on the date of the notification or on such later date as may be specified in the notification.
(2) When any right, title and interest in relation to the area or part thereof vest in the authority or body or
trustees referred to in sub-section (1), such rights of the Central Government in relation to such area or part
thereof, shall, on and from the date of such vesting, be deemed to have become the rights of that authority or
body or trustees of that trust.
(3) The provision of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or
body or trustees as they apply in relation to the Central Government and for this purpose references therein to
the Central Government shall be construed as references to such authority or body or trustees.

408

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7. Management of property by Government.—(1) Notwithstanding anything contained in any contract or

instrument or order of any court, tribunal or other authority to the contrary, on and from the commencement of
this Act, the property vested in the Central Government under Section 3 shall be managed by the Central
Government or by a person or body of persons or trustees of any trust authorised by that Government in this
behalf.
(2) In managing the property vested in the Central Government under Section 3, the Central Government or the
authorised person shall ensure that the position existing before the commencement of this Act in the area on
which the structure (including the premises of the inner and outer courtyards of such structure), commonly
known as the Ram Janma Bhumi-Babri Masjid stood in village Kot Ramchandra in Ayodhya, in Pargana Haveli
Avadh, in tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh is maintained.

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PART Q

804. Suit 3 filed by Nirmohi Akhara has been held to be barred by limitation. We

have also rejected the objection of Nirmohi Akhara and of the Sunni Central Waqf

Board to the maintainability of Suit 5 which was based on their plea that Nirmohi

Akhara is a shebait. Nirmohi Akhara‘s claim to be a shebait stands rejected.

However, having regard to the historical presence of Nirmohi Akhara at the

disputed site and their role, it is necessary for this Court to take recourse to its

powers under Article 142 to do complete justice. Hence, we direct that in framing

the scheme, an appropriate role in the management would be assigned to the

Nirmohi Akhara.

Q. Reliefs and directions

805. We accordingly order and direct as follows:

1 (i) Suit 3 instituted by Nirmohi Akhara is held to be barred by limitation

and shall accordingly stand dismissed;

(ii) Suit 4 instituted by the Sunni Central Waqf Board and other plaintiffs is

held to be within limitation. The judgment of the High Court holding Suit 4

to be barred by limitation is reversed; and

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

2 Suit 5 is held to be maintainable at the behest of the first plaintiff who is

represented by the third plaintiff. There shall be a decree in terms of prayer

clauses (A) and (B) of the suit, subject to the following directions:

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PART Q

(i) The Central Government shall, within a period of three months from the

date of this judgment, formulate a scheme pursuant to the powers vested

in it under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya

Act 1993. The scheme shall envisage the setting up of a trust with a Board

of Trustees or any other appropriate body under Section 6. The scheme to

be framed by the Central Government shall make necessary provisions in

regard to the functioning of the trust or body including on matters relating

to the management of the trust, the powers of the trustees including the

construction of a temple and all necessary, incidental and supplemental

matters;

(ii) Possession of the inner and outer courtyards shall be handed over to the

Board of Trustees of the Trust or to the body so constituted. The Central

Government will be at liberty to make suitable provisions in respect of the

rest of the acquired land by handing it over to the Trust or body for

management and development in terms of the scheme framed in

accordance with the above directions; and

(iii) Possession of the disputed property shall continue to vest in the statutory

receiver under the Central Government, untill in exercise of its jurisdiction

under Section 6 of the Ayodhya Act of 1993, a notification is issued vesting

the property in the trust or other body.

3 (i) Simultaneously, with the handing over of the disputed property to the Trust or

body under clause 2 above, a suitable plot of land admeasuring 5 acres

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PART Q

shall be handed over to the Sunni Central Waqf Board, the plaintiff in Suit

4.

(ii) The land shall be allotted either by:

(a) The Central Government out of the land acquired under the Ayodhya

Act 1993; or

(b) The State Government at a suitable prominent place in Ayodhya;

The Central Government and the State Government shall act in consultation with each

other to effectuate the above allotment in the period stipulated.

(iii) The Sunni Central Waqf Board would be at liberty, on the allotment of the land to

take all necessary steps for the construction of a mosque on the land so allotted

together with other associated facilities;

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

(v) The directions for the allotment of land to the Sunni Central Waqf Board in Suit 4

are issued in pursuance of the powers vested in this Court under Article 142 of the

Constitution.

4 In exercise of the powers vested in this Court under Article 142 of the

Constitution, we direct that in the scheme to be framed by the Central Government,

appropriate representation may be given in the Trust or body, to the

Nirmohi Akhara in such manner as the Central Government deems fit.

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PART Q

5 The right of the plaintiff in Suit 1 to worship at the disputed property is affirmed

subject to any restrictions imposed by the relevant authorities with respect to the

maintenance of peace and order and the performance of orderly worship.

806. All the appeals shall stand disposed of in the above terms. Parties are left to

bear their own costs.

Acknowledgments

In crafting this judgment, the forensic contest before this Court has provided a

valuable insight in navigating through the layers of complexity of the case. The

erudition of counsel, their industry, vision and above all, dispassionate objectivity

in discharging their role as officers of the court must be commended. We

acknowledge the assistance rendered by Mr K Parasaran and Dr Rajeev Dhavan,

learned Senior Counsel who led the arguments. Their fairness to the cause which

they espouse and to their opponents as, indeed, to the court during the course of

the hearings has facilitated the completion of the hearings in the spirit that all

sides have ultimately been engaged in the search of truth and justice.

The other learned Senior Counsel whose efforts need to be acknowledged are:

Mr C S Vaidyanathan, Mr S K Jain, Mr Ranjit Kumar, Mr Zafaryab Jilani, Ms

Meenakshi Arora, Mr Shekhar Naphade and Mr P S Narasimha. We also

acknowledge the assistance rendered to the court by Mr P N Mishra, Mr Mohd

Nizamuddin Pasha, Mr V N Sinha, Mr Hari Shankar Jain, Mr Jaideep Gupta

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PART Q

(learned Senior Counsel), Mr Vikas Singh (learned Senior Counsel), Mr M C

Dhingra, and Mr Anoop Bose. While acknowledging the scholarly contributions

made by the arguing counsel both in their oral arguments and written

submissions, we must equally notice the sincerity and dedication of the learned

assisting counsel and among them the industry of the junior counsel.

One of us, while being in agreement with the above reasons and directions, has

recorded separate reasons on: ―Whether the disputed structure is the birth-

place of Lord Ram according to the faith and belief of the Hindu devotees‖. The

reasons of the learned judge are set out in an addendum.

.....….……...…...….......………………........CJI.
[RANJAN GOGOI]

….…...………...…...….......………………........J.
[S A BOBDE]

..........………...…...….......………………........J.
[DR DHANANJAYA Y CHANDRACHUD]

……...………...…...….......………………........J.
[ASHOK BHUSHAN]

..….....…....………...…...….......……………...J.
[S ABDUL NAZEER]

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New Delhi;
November 09, 2019.

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ADDENDA

Whether disputed structure is the holy birth place of

Lord Ram as per the faith, belief and trust of the
Hindus?

1. It is necessary to notice the issues framed in all

the suits related to the above and findings recorded

by the High Court.

In Suit No.1 following was the relevant

issue: Issue No.1 was “Is the property in
suit the site of Janam Bhumi of Sri Ram
Chandra Ji ?”

In Suit No.3 following were the relevant issues:

Issue No.1 : Is there a temple of Janam

Bhumi with idols installed therein as
alleged in para 3 of the plaint ?

Issue No.5 : Is the property in suit

a Mosque made by Emperor Babar known as
Babri Masjid ?

In Suit No.4 relevant issues were:

Issue No. 1(a) : When was it built

and by whom-whether by Babar as alleged by
the plaintiffs or by Meer Baqui as alleged
by defendant No. 13?

Issue No. 1(b) : Whether the building

had been constructed on the site of an
alleged Hindu temple after demolishing the

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same as alleged by defendant no. 13? If

so, its effect?

Issue No.11 : Is the property in suit the

site of Janam Bhumi of Sri Ram
Chandraji?

Issue No.14: Have the Hindus been

worshiping the place in dispute as Sri Ram
Janam Bhumi or Janam Asthan and have been
visiting it as a sacred place of
pilgrimage as of right since times
immemorial ? If so, its effect ?

In Suit No.5 relevant issue was:

Issue No.22: Whether the premises in

question or any part thereof is by
tradition, belief and faith the birth
place of Lord Rama as alleged in
paragraphs 19 and 20 of the plaint ? If
so, its effect ?

2. After noticing the issues relevant to the points

under consideration, it is necessary to notice the

pleadings of the parties in brief in the above

respect.

3. In Suit No.1, the plaintiff, follower of Sanatan

Dharam is the resident of Ayodhya and as per his

religion, he used to worship and have the darshan of

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the deities and Idols. It was pleaded in paragraph 1

and 2:

“1. That the original Plaintiff, follower

of Sanatan Dharm and is the resident of
Ayodhya and as per his religion, he used to
worship and have the darshan of the deities
and idols and the present plaintiff like
his deceased father (original Plaintiff) is
the follower of Sanatan Dharma and performs
the worship and has the darshan of the
deities and holy places etc.

2. That the plaintiff has been worshipping

and having darshan of the idol of Lord Shri
Ram Chandra Ji and Charan Paduka (foot
impressions) etc., in that place of
Janambhumi , details whereof has been given
hereinbelow and he is entitled to perform
worship and have darshan in that place
without any obstruction or interference and
forever in future also.”

4. In the written statement filed by the defendant

No.1, Zahoor Ahmed, para 2 of the plaint was replied

in following manner:

“2. The corresponding paragraph is denied.

The property of which the case has been
filed is not Janambhumi but a mosque
constructed by emperor of India Babar
Shah.”

5. In paragraph 9, it was pleaded that Mosque was

constructed by emperor Babar Shah through its

Minister, Mohammad Mir Baqi in the year 1528.

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6. In paragraph 27 it was pleaded that in Ayodhya

there was a temple on the place of Janmasthan of Ram

Janma Bhumi for quite long and still existing in

which there are Idols of Ramchandraji etc. It was

stated that the present suit claiming as Babri Masjid

as the place of Janmasthan against the defendants and

other persons is objectionable and is the result of

achieving nefarious ends and to take advantage in the

coming elections.

7. Plaintiff filed replication denying paragraph 9

of the written statement. It was denied that Mosque

is the Babri Mosque. Paragraph 27 of the written

statement was also denied. It was stated that temple

Janma Asthan mentioned by the defendant is another

temple whose boundaries were also mentioned in the

replication.

8. Defendant Nos.6, 8 and 9, who were the

Stateparties also filed their written statement.

9. U.P. Sunni Central Board of Wakf (hereinafter

referred to as “Sunni Board”), Defendant No.10, filed

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written statement pleading that building referred to

in paragraph 2 in the plaint is not place of Janma

Bhumi of Ram Chandra and plaintiff has no right and

no Idols of Ram Chandra were ever installed in the

said building. There is no question of any right and

claim of the plaintiff to perform Puja and Darshan.

It was pleaded that property in suit known as Babri

Masjid and same was constructed in the regime of

emperor Babar. In the additional pleas in paragraph

10 following was stated:

“That the property in suit is an old mosque

constructed around the year 1528 AD during
the regime of Emperor Babar under the
supervision of Mir Baqi and the same has
always been used as a mosque and it was
never used as a temple or as a place of
worship for any other community except
muslims.”

10. Plaintiff of Suit No.3 pleaded that Janma Asthan,

now, commonly known as Janma Bhumi, birth place of

Ram is situate in Ayodhya belonged to plaintiff No.1.

The said Asthan, the Janma Bhumi is of ancient

antiquity and has existed since before the living

memory of man. The Muslims, Defendant Nos.6 to 8

filed written statement where it was pleaded that

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property against which plaintiff has filed the suit

is Babri Masjid built by Babar Shah constructed in

the year 1528 A.D. U.P. Sunni Central Board of Wakf

had also filed written statement claiming the suit

property as Mosque constructed by emperor Babar in

1528 and existence of any temple was denied.

11. A written statement was also filed by Defendant

No.10, Umesh Chandra Pandey. In his written statement

he has stated that Janma Asthan is holy place for

worshiping the Deity of Ram Lalla Virajman there.

12. In Suit No.4, the plaintiff pleaded that in the

town of Ayodhya there exists an ancient historic

Mosque commonly known as Babri Masjid built by

emperor Babar more than 433 years ago, after his

conquest of India and occupation of territories

including the town of Ayodhya. In Suit No.4, written

statement was filed by Defendant Nos.1 and 2. In

paragraph 25 it was pleaded that members of the Hindu

community have from time immemorial been worshiping

the site as of the Janma Bhumi. A written statement

was also filed by Defendant No.3, Nirmohi Akhara and

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Defendant No.4, Mahant Raghunath Das. The existence

of Mosque claimed by the plaintiff was denied. It was

further pleaded that the alleged Mosque never

existed, nor it exists now. The building which the

plaintiffs have been wrongly referring as Babri

Masjid is and has always been the temple of Janma

Bhumi with Idols of Hindu God installed therein. In

the additional pleas it was pleaded that the temple

in question known as Janma Bhumi, the birth place of

Lord Ram Chandra, situate in Ayodhya belongs and will

always belongs to Defendant No.3.

13. In Suit No.4, written statement was also filed by

State, Defendant Nos.5 to 8 in which it was pleaded

that the Government is not interested in the property

which is in dispute and as such it is not proposed to

contest the suit. Defendant No.10 filed a written

statement and additional written statement. Few other

defendants also filed written statement. In written

statement filed by Dharam Das, Defendant No.13, it

was pleaded that Mir Baqi, who was a Shia and

commanded by Babar, demolished the ancient Hindu

temple at the time of Raja Vikramaditya at Sri Ram

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Janma Bhumi. It was, further, pleaded that originally

there was a temple erected. Few of the other

defendants filed written statements. Defendant No.20,

the convenor of Akhil Bharatiya Shri Ram Janma Bhumi

Punrudhar Samiti filed a detailed written statement

and additional statement.

Plaintiff also filed a replication.

14. In Suit No.5 it was pleaded that premises in

dispute is the place where Maryada Purushottam Ram

Chandra Ji Maharaj was born. The Hindus worship

divine which has no quality or shape or form. In

paragraph 19 and 20 following was pleaded:

“19. That is manifestly established by

public records of unimpeachable authority
that the premises in dispute is the place
where Maryada Purushottam Ji Maharaj was
born as the son of Maharaja Dashrath of the
solar Dynasty, which according to the
tradition and the faith of the devotees of
Bhagwan Sri Rama is the place where HE
manifested HIMSELF in human form as an
incarnation of BHAGWAN VISHNU. The place
has since ever been called Sri Rama Janma
Bhumi by all and sundry through the ages.

20. That the place itself, or the ASTHAN

SRI RAMA JANMA BHUMI, as it has come to be
known, has been an object of worship as a
Deity by the devotees of BHAGWAN SRI RAMA,
as it personifies the spirit of the Divine
worshipped in the form of SRI RAMA LALA or

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Lord RAMA the child. The Asthan was thus

Deified and has had a juridical personality
of its own even before the construction of
a Temple building or the installation of
the idol of Bhagwan Sri Rama there at.”

15. In paragraph 23 of the plaint, plaintiff also

relied on ‘1928 Edition of the Fyzabad Gazetteer

published by the Government Press, U.P.

16. It was further pleaded that disputed structure

was raised on the land belonging to the plaintiff-

Deity after destroying the temple situate there. In

paragraph 24(C), it was further pleaded that in spite

of all that Mir Baqi tried to do with the Temple, the

land always continued to vest in the Plaintiff-

Deities. Paragraph 24(C) is as follows:

“24(C) That in spite of all that Mir Baqi

tried to do with the Temple, the land
always continued to vest in the Plaintiff
Deities, and they never surrendered their
possession over it. Their possession
continued in fact and in law. The ASTHAN
never went out of the possession of the
Deity and HIS worshippers. They continued
to worship HIM through such symbols as the
CHARAN and SITA RASOI, and the idol of
BHAGWAN SRI RAM LALLA VIRAJMAN on the
Chabutra, called the Rama Chabutra, within
the enclosed courtyard of the building
directly in front of the arched opening of

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its Southern dome. No one could enter the

building except after passing through there
can be no Idol worship within the courtyard
of a mosque, and the passage to a mosque
must be free and unobstructed and open at
all times to the ’Faithful’. It can never
be through Hindu place of worship. There
can be no co-sharing of title or possession
with ALLAH in the case of a mosque. His
possession must be exclusive.”

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17. In paragraph 25 it was pleaded that worship of the

Plaintiff-Deities has continued since ever throughout

the ages at Sri Ram Janma Bhumi. The place belongs to

the Deities. No valid Waqf was ever created or could

have been created at the place or any part of it, in

view of the title and possession of the

PlaintiffDeities thereon.

18. Defendant No.3, Nirmohi Akhara filed a written

statement wherein denying paragraphs 19 and 20

following was pleaded:

“19. That the contents of para-19 need no

reply except that though the birth place of
Bhagwan Ram is place where the temple known
as Ram Janma Bhumi Temple is constructed
but the dispute is not regarding the place
of birth of Lord Rama but regarding the
Temple known as Tample Shri Ram Janma
Bhumi. The belief that Lord Ram is the son
of Raja Dashrath of solar Dynasty is not
disputed.

20. That the contents of para-20 of the

plaint are denied. They are products of
imagination of the so called Next Friend of the
plaintiffs 1 and 2. The plaintiffs studiously
avoid to mention the subject of dispute as the
Ram Janma Bhumi Temple for whose delivery of
charge and management the Nirmohi Akhara has
filed the suit No.26 of 1959 and maliciously uses
the phrase Asthan Sri Ram Janma Bhumi which is
meaningless. The said Asthan is not a juridical
person.”

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19. Additional written statements were also filed by

defendant No.3. In para-42 of the additional written

statement it was pleaded that the outer Sahan carried

a little temple of Bhagwan Ram Lallaji along with

other Idols which was regularly worshipped according

to the customs prevailing amongst Rama Nandi

Vairagies. The outer part with temple of Ram Lallaji

and other Deities have ever been in management and

charge of Nirmohi Akhara as Shebait. It was further

pleaded that attachment made in 1949 was only in

respect of main building of Garbh Grahya carrying

three “Shikher” wherein the Deity of Bhagwan Sri Ram

Chandraji is installed by Nirmohi Akhara from time

beyond the human memory.

20. The written statement was filed by Sunni Board,

Defendant No.4. In para-13, it was pleaded that

building in dispute is not the Janam Bhumi of Sri Ram

Chandraji and no Idols of Ram Chandraji were ever

installed in the said building. In the second part of

para-13 following was pleaded:

“13…… It is further submitted that the building

in dispute is not the Janam Bhoomi of Sri Ram
Chandraji and no Idols of Sri Ram Chandraji were

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ever installed in the said building and as such

there arises no question of any right or claim
of the defendant No.20 or of anyone else to
perform Pooja and Darshan over there. The fact
is that the property in suit is an old mosque
known as Babri Masjid and the same was
constructed during the regime of Emperor Babar.”

21. It was pleaded in para-19 that neither there is

any public record, much less any record of

unimpeachable authority showing that the premises in

dispute is the place of birth of Sri Ram Chandraji nor

there is any historical or judicial record to testify.

It was further pleaded in para-19 that Hindu books as

well as the writing of Hindu scholars themselves make

it very doubtful as to whether the personality of Sri

Ram Chandraji is a historical personality. In para-24

it was pleaded that at no point of time there ever

existed any temple at the site of the Babri Masjid and

it is absolutely incorrect to say that the said Mosque

was constructed, after destroying any ancient temple,

with the material of the alleged temple. The Mosque in

question has always been used as a Mosque since its

construction during the regime of Emperor Babar.

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22. Defendant No.5 also filed written statement. It

was pleaded in para 19 that there is no evidence,

historic or otherwise, to indicate that Sri Ram

Chandra Ji was born there. Defendant Nos.4 and 5 also

filed an additional written statement.

23. The reference of one more written statement is

necessary i.e. the written statement filed by

Defendant No.24. Defendant No.24 is Prince Anjum,

President, All India Shia Conference, Lucknow. In

reference to Lord Ram, Defendant No.24 has pleaded

that Muslims of India has highest regard for Lord Ram.

Pleadings made in para10 of the written statement in

this regard are as follows:

“10. With reference to the statements made

in paragraph 18, this defendant at the
outset wishes to record the fact that he
and the Muslims of India have the highest
regard for Lord Rama. These sentiments of
the Muslims are best reflected in the poem
entitled “Ram” composed by the greatest
Muslim thinker of India of the present
century Allama Dr.Sir Muhammad Iqbal, who
has summed up in just one verse of the long
poem what Muslims of India think of Shri
Ram Chanerji:

“Hae Ram ke wajood pa Hindostan ko naaz

Ahl-e Nazar Samajht-e hain usko Imam-eHind.”

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Meaning- India is proud of the existence of

Ram. The intelligentsia consider him as the
leader of India.”

24. It was, however, denied that premises in dispute

is the place where Ram Chandraji was born. In

paragraph 15 of the written statement he has

referred to Maulana Syed Sabahuddin Abdur Rahman who

in his treatise “BABRI MASJID” had stated that if it

is proved that Babri Masjid has been built after

demolishing Ram Janam Bhumi Mandir on its place,

then such a Mosque if built on such an usurped land

deserves to be destroyed. In paragraph 15 following

was pleaded:

“15………In this connection, the celebrated

Muslim historian and scholar Maulana Syed
Sabahuddin Abdur Rahman (since expired) in
his well-known treatise “BABRI MASJID”
wrote at page 5 at the very beginning of
his preface thus: (translation from Urdu)

“On behalf of Muslims I also have a right

to say that if it is proved that Babri
Masjid has been built after demolishing Ram
Janam Bhoomi Mandir on its place, then such
a mosque if built on such an usurped land
deserves to be destroyed. No theologean or
Aalim can give Fatwa to hold Namaz in it.”

25. To the same effect pleadings were made in para-26

which are as follows:

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“26. That as regards the contents of

paragraphs 34 and 35 of the Suit Plaint,
the answering defendant being a
representative of the Shia Muslims of India
is deadly against any form of sacrilegious
actions. He is of the firm view that no
place of worship of any religion should be
destroyed and no place of worship should be
constructed on the ruins of the destroyed
one. The Answering defendant firmly
believes that the Babri Masjid was
certainly not built after destroying the
Vikramaditya Mandir or any temple. Yet, at
the same time if it is unequivocally proved
in this Hon’ble Court in the light of
historical archaeological and expert
scientific evidence that the Babri Masjid
was really built after demolishing any
Mandir on the Mandir land, only then this
defendant will withdraw his opposition.

As a further concession to the Plaintiff

No.3 and to the Hindu community of India
whose religious sentiments the said
Plaintiff and his party are trying to
wrongly arouse since last 3 years, this
Defendant is prepared to withdraw his
opposition also if it is unequivocally
proved, in this Hon’ble Court that the
belief, of Ram Janam Asthan being at the
presently claimed spot inside the Babri
Masjid, existed from before the Babri
Masjid was built, existed from before the
Babri Masjid was built. And that the Babri
Masjid was knowingly built on the Ram Janam
Asthan sport.”

26. Defendant No.25 also filed written statement. It

was pleaded that the area and the places indicated

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in Annexure NO.1, 2 and 3 of the plaint are neither

Ram Janma Bhumi nor Ram Janma Asthan. It was further

stated that it is evident that there exists a Mosque

known as Babri Masjid, the existence of this Mosque

is established by record, Historic, Judicial and

Revenue.

27. The above is the relevant pleading of the parties

on the points under consideration.

28. Faith and belief foster and promote the spiritual

life of the soul.

29. This Court in Shastri Yagnapurushadji and others

vs. Muldas Bhudardas Vaishya and another, AIR 1966

SC 1119, explaining the Hindu religion made the

following observation in paragraphs 29, 30 and 31:

“29. When we think of the Hindu religion,

we find it difficult, if not impossible, to
define Hindu religion or even adequately
describe it. Unlike other religions in the
world, the Hindu religion does not claim
any one prophet; it does not worship any
one God; it does not subscribe to any one
dogma; it does not believe in any one
philosophic concept; it does not follow any
one set of religious rites or performances;
in fact, it does not appear to satisfy the

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narrow traditional features of any religion

or creed. It may broadly be described as a
way of life and nothing more.

30. Confronted by this difficulty, Dr. Radhakrishnan

realised that “to many Hinduism seems to be a name
without any content. Is it a museum of beliefs, a
medley of rites, or a mere map, a geographical
expression?” Having posed these questions which
disturbed foreigners when they think of Hinduism, Dr
Radhakrishnan has explained how Hinduism has
steadily absorbed the customs and ideas of peoples
with whom it has come into contact and has thus been
able to maintain its supremacy and its youth. The
term “Hindu”, according to Dr Radhakrishnan, had
originally a territorial and not a credal
significance. It implied residence in a well-defined
geographical area. Aboriginal tribes, savage and
half-civilized people, the cultured Dravidians and
the Vedic Aryans were all Hindus as they were the
sons of the same mother. The Hindu thinkers reckoned
with the striking fact that the men and women
dwelling in India belonged to different communities,
worshipped different gods, and practised different
rites (Kurma Purana)(“The Hindu View of Life” by Dr.
Radhakrishnan, p.12).

31. Monier Williams has observed that “it must be

borne in mind that Hinduism is far more than a mere
form of theism resting on Brahmanism. It presents
for our investigation a complex congeries of creeds
and doctrines which in its gradual accumulation may
be compared to the gathering together of the mighty
volume of the Ganges, swollen by a continual influx
of tributary rivers and rivulets, spreading itself
over an everincreasing area of country and finally
resolving itself into an intricate Delta of tortuous
steams and jungly marshes... The Hindu religion is a
reflection of the composite character of the Hindus,
who are not one people but many. It is based on the
idea of universal receptivity. It has ever aimed at
accommodating itself to circumstances, and has
carried on the process of adaptation through more
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than three thousand years. It has first borne with

and then, so to speak, swallowed, digested, and
assimilated something from all creeds”.(“Religious
Thought & Life in India” by Monier Williams, p.57)”

30. The concept of Hinduism has been defined by great

scholars and jurists, but in this case, it is not

necessary to dwell upon concept of Hinduism. The

core of all religions and faith is one, i.e., quest

for truth, quest for knowing more about soul and

quest to know more about Supreme, who in one or other

form is worshipped in all religions. Every religion,

every faith revere and sings the glory of God with

whom I all want to relate. Wordsworth in his

beautiful poem has also echoed the same thought:-

“Our birth is but a sleep and a forgetting;

The Soul that rises with us, our life’s star
Hath had elsewhere its setting,
And cometh from afar ;
Not in entire forgetfulness,
And not in utter nakedness,
But trailing clouds of glory do we come
From god who is our home,”

31. Reverting back to the point which are up for

consideration, i.e., whether the disputed structure

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is holy birthplace of Lord Ram as per the faith,

trust and belief of Hindus?

32. Ayodhya, which is associated with Ram is treated

a holy city by Hindu scriptures. In Brihad-

dharmottara Purana, Ayodhya is referred to one of

seven holiest cities in following verse:-

अयोा मथुरा माया का का ची वका ।।

पुरी ारावती चैव सैता मोदाियकाः ।

Ayodhya, Mathura, Maya (Haridwar),

Kashi, Kanchi, Avantika (Ujjain) and
Dvaravati (Dwaraka) are seven most sacred
cities.

33. A long span of period, which spread into several

centuries fall for consideration. The case of

plaintiff of Suit No.4 as noted above is that Babri

Mosque was constructed in 1528 by Mir Baqi on the

order of Emperor Babar. Dr. Rajeev Dhavan, learned

senior counsel appearing for plaintiff in Suit NO. 4

for Muslim Parties as well as Shri Zafaryab Jilani,

learned senior counsel have contended that there was

no faith and belief regarding the disputed site being

Janma Asthan of Lord Ram at any time before 1989,

when Suit No.5 was filed. It is submitted that theory

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of disputed site being called as Janma Asthan of Lord

Ram is of recent origin and there are no evidence of

any earlier time that Hindus had faith and belief

that where the Mosque was constructed was birth place

of Lord Ram.

Dr. Dhavan submits that the argument that Ayodhya

Mahatmya in Skanda Purana gives the location of Ram

Janma Bhumi, which matches with the site of Babri

Masjid has not been found correct. In support of his

submission, he has relied on “Historian Report to the

Nation”, which has been exhibited by plaintiff in

Suit No.5 (Ext. No.44) as well as plaintiff in Suit

No.4 (Ext. No.62). It is submitted that the above

report states that location described in the Ayodhya

Mahatmya in Skanda Purana does not match with the

present-day location of Babri Masjid. It is

submitted that no place in Ayodhya is associated with

Lord Ram’s birth either in Eleventh Century or even

six centuries after. When a place is associated with

the birthplace of Lord Ram, possibly in the later

Eighteenth Century, its location given in the various

Mahatmyas does not tally with the Babri Masjid. The

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arguments based on book Ayodhya by Hans Bakker has

also been refuted by Dr. Dhavan. He submits that no

reliance can be placed on the Hans Bakker since (i)

Hans Bakker proceeds on the presumption that Ayodhya

is not a real city but a figment of the poet’s

imagination; (ii) Bakker proceeds by equating Ayodhya

to the city of Saketa; (iii) Bakker further states

that even by mapping the birthplace from Ayodhya

Mahatmya and ultimately states that Babri Masjid is

built at the birthplace as is confirmed by local

belief; (iv) even the impugned judgment records that

Hans Bakker proceeds on the basis of conjectures

without assigning any reason.

34. With regard to the statement recorded in various

travelogues, Dr. Dhavan submits that statement in

travelogues are all hearsay and those travellers were

only story tellers on which no reliance can be

placed. Insofar as Gazetteers are concerned, Dr.

Dhavan submits that Gazetteers which were prepared

during the period of East India Company were the

Gazetteers prepared to place before the Britishers

and they being not under governmental authority

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cannot be relied. He submits that Gazettes prepared

after 1858 when the British assumes sovereignty on

the area in question, can be looked into, but those

Gazettes cannot be stand alone evidence and needs

corroboration by any other intrinsic evidence. He

submits that the site of Babri Masjid was constructed

in 1528 A.D. being not the birthplace of Lord Ram,

there is no question of treating construction of

Babri Mosque on birthplace of Lord Ram.

35. Above submission has been refuted by learned

senior counsel, Shri K.Parasaran, Shri C.S.

Vaidyanathan, Shri P.N. Mishra and Shri P.S.

Narsimha. Shri C.S. Vaidyanathan, learned senior

counsel refuting the submissions of Dr. Dhavan

contends that faith and belief of the Hindus in

respect of place where disputed structure was put up

during the Mughal period was the birthplace of Lord

Ram and has been since ages worshipped as such the

place being divine and of sacred character. It is

submitted that scriptures and sacred writings, which

are of much earlier period than 1528 appropriately

describes the Janma Asthan of Lord Ram at Ayodhya.

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Reliance has been placed on Skanda Purana,

Vaisnavakhanda, Ayodhya Mahatmya specifically. It is

submitted that Valmiki Ramayana, which is composition

Before Christ also refers to Ayodhya as birthplace of

Lord Ram, according to which Lord Ram was born at the

palace of King Dasratha at Ayodhya. ‘Ramcharit

Manasa’ by Tulsidas has also been referred to wherein

the birth of Lord Ram at Ayodhya is mentioned, which

is being celebrated on Chaitra Navami, Shukla Paksha

every year. Learned counsel appearing for the Hindu

parties also submits that travellers’ account, which

relates to the period prior to 1858 as well as after

1858, which are in form of published books are

relevant and can be relied by the Court under Section

57 of Indian Evidence Act, 1872. Coming to the

Gazetteers, learned counsel submits that Gazetteers

are published work by Government authorities, which

has substantial evidentiary value. It is submitted

that Gazetteers have been relied by this Court in

several cases and statements recorded in Gazetteers

has to be considered as substantial evidence and

looked into. Shri P.S.

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Narsimha elaborating his submission submits that the

test, which has to be applied for marshalling the

evidence is the standard of preponderance of

probability. Referring to Section 3 of Evidence Act,

he submits that proof of fact depends upon the belief

or probability of the fact looking to the

circumstances of the particular case. It is

submitted that oral and documentary evidence

submitted on behalf of the Hindu parties proves the

faith and belief of Hindus that disputed site is

birthplace of Lord Ram. He submits that Valmiki

Ramayana refers to birth of Shri Ram in Ayodhya,

which is the epic of the East and considered to have

become the foundation of the culture and tradition of

our country. Skanda Purana is of Eighth Century

A.D., which provides ample proof of faith that is

instilled in the heart of Hindus, i.e., visit to

birthplace of Lord Ram, which is of extreme merit

which, for Hindus, is nothing but Moksha. It is

further submitted that repeated assertions and right

to worship by the Hindus in the disputed premises and

the various fights by Hindus is ample proof of their

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undying faith that disputed site is the birthplace of

Lord Ram. Shri

P.N. Mishra elaborating his submission has placed

reliance on Holy Scriptures Shrimad Valmiki Ramayana

and Srimad Skandpuranam, Rudrayamala, Sri

Ramacharitamanasa and other scriptures like Srimad

Narashingha Puranam. Reliance has been placed on

Verse 15 to 17 and 18 to 25 and particular pages of

Ayodhya Mahatmya of Skanda Purana, he submits that

the above verses gives the geographical situation of

birthplace of Lord Ram, which is still verifiable.

Shri Mishra took us to the oral evidence of witnesses

where according to him witnesses have proved the

locations as mentioned in the Skanda Purana with

respect to birthplace of Lord Ram. Referring to map

prepared by Hans Bakker and the site plan prepared by

Shiv Shankar Lal in Suit No.2 of 1950, he submits

that several marks mentioned in Skanda Purana are

still present, which certifies the location of

birthplace as the disputed site.

36. The faith and belief that disputed site is

birthplace of Lord Ram has to be established since

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before 1528 when disputed structure is said to have

been constructed by Babar. The oral evidence, which

has been led by the parties to support their

respective cases can at best be the oral evidence of

that which has been seen by the witnesses, who depose

before the Court, which can at best be of things as

existed in the Twentieth Century only. There are

some Exhibits filed by the parties, which relates to

Nineteenth Century. The Holy Scriptures relied by

Hindu Parties being of older period, the accounts of

travelogues and Gazetteers belonging to different

period, some before Nineteenth Century, the period of

consideration have to be divided in three parts.

First period before 1528, second period from 1528 to

1858 and the third period after 1858 to 1949.

Although in the written statement filed by Muslim

Parties, Sunni Central Board under Suit No.5 pleaded

that as a matter of fact, the religious books as well

as the writings of Hindu Scholars makes it very

difficult as to whether personality of Shri Ram

Chandra Ji is a historical personality, but by making

statements under Order X Rule 2 of the Civil

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Procedure Code, which statements have been recorded

by the High Court and has been referred by the High

Court in its judgment, the stand of Muslim parties

have been clarified. It is necessary to refer the

above statements made under Order X Rule II C.P.C.

The statement of Shri Zafaryab Jilani, counsel for

plaintiff in Suit No.4 was recorded by the Full Bench

of the High Court on 22.04.2009, which is to the

following effect:-

“STATEMENT OF SRI ZAFARYAB ZILANI, COUNSEL

FOR PLAINTIFF IN O.O.S. 4 OF 1989 MADE
UNDER ORDER X RULE 2 C.P.C. ON 22.04.2009.
For the purpose of this case there is no
dispute about the faith of Hindu devotees
of Lord Rama regarding the birth of Lord
Rama at Ayodhya as described in Balmiki
Ramayana or as existing today. It is,
however, disputed and denied that the site
of Babri Masjid was the place of birth of
Lord Rama. It is also denied that there
was any Ram Janam Bhoomi Temple at the
site of Babri Masjid at any time
whatsoever.
The existence of Nirmohi Akhara from the
second half of Nineteenth Century onwards
is also not disputed. It is, however,
denied and disputed that Nirmohi Akhara
was in existence and specially in Ayodhya
in 16the Century A.D. or in 1528 A.D. and
it is also denied that any idols were
there in the building of the Babri Masjid
up to 22nd December, 1949.
Sd/- Z. Jilani,
Adv.
22.04.2009”
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To the same effect was statement made by another

learned counsel Shri Mustaq Ahmad Siddiqui, who

appeared for plaintiff in Suit No.4 and Shri Syed

Irfan Ahmad, counsel for defendant No.6/1 and 6/2 in

Suit No. 3. All the three statement in identical

words is extracted below:-

“STATEMENT OF SRI MUSAQ AHMAD SIDDIQUI, COUNSEL

FOR PLAINTIFF IN O.O.S. 4 OF 1989
MADE UNDER ORDER X RULE 2 C.P.C. ON
22.04.2009.
For the purpose of this case there is no
dispute about the faith of Hindu devotees
of Lord Rama regarding the birth of Lord
Rama at Ayodhya as described in Balmiki
Ramayana or as existing today. It is,
however, disputed and denied that the site
of Babri Masjid was the place of birth of
Lord Rama. It is also denied that there
was any Ram Janam Bhoomi Temple at the
site of Babri Masjid at any time
whatsoever. The existence of Nirmohi
Akhara from the second half of Nineteenth
Century onwards is also not disputed. It
is, however, denied and disputed that
Nirmohi Akhara was in existence and
specially in Ayodhya in 16th Century A.D.
or in 1528 A.D. and it is also denied that
any idols were there in the building of
the Babri Masjid up to 22nd December,
1949.
Sd/- M.A. Siddiqui, Adv. 22.04.2009
STATEMENT OF SRI SYED IRFAN AHMAD, COUNSEL
FOR DEFENDANTS No.6/1 and 6/2 IN
O.O.S.NO.34 OF 1989 MADE UNDER ORDER X
RULE 2 C.P.C. ON 22.04.2009.
For the purpose of this case there is no
dispute about the faith of Hindu devotees

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of Lord Rama regarding the birth of Lord

Rama at Ayodhya as described in Balmiki
Ramayana or as existing today. It is,
however, disputed and denied that the site
of Babri Masjid was the place of birth of
Lord Rama. It is also denied that there
was any Ram Janam Bhoomi Temple at the
site of Babri Masjid at any time
whatsoever. The existence of Nirmohi
Akhara from the second half of Nineteenth
Century onwards is also not disputed. It
is, however, denied and disputed that
Nirmohi Akhara was in existence and
specially in Ayodhya in 16th Century A.D.
or in 1528 A.D. and it is also denied that
any idols were there in the building of
the Babri Masjid up to 22nd December,
1949.
Sd/- S. Irfan Ahmad,
Adv.
22.04.2009”

37. The stand of plaintiff of Suit No.4 with regard

to faith and belief of Hindus regarding birth of Lord

Ram at Ayodhya having been made clear and it having

been accepted that there is no dispute about the

faith of Hindu devotees that Lord Ram was born at

Ayodhya, our consideration is confined to only a

limited submission as to whether site of disputed

structure where Babri Masjid was constructed is the

place of birth of Lord Ram or not. It will be

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necessary to consider the evidence led by the parties

in respect of above aspect only.

Period earlier to 1528 A.D.

38. Religious faith of a person is formed on

traditions, religious scriptures and practices.

Constitution Bench of this Court speaking through

Justice B.K. Mukherjea in The Commissioner, Hindu

Religious Endowments, Madras Vs. Sri Lakshmindra

Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282

held that religion is certainly a matter of faith

with individuals or communities, in paragraph 17,

following has been observed:-

“17. XXXXXXXXXXXXXXX

Religion is certainly a matter of

faith with individuals or communities and
it is not necessarily theistic. There are
well known religions in India like
Buddhism and Jainism which do not believe
in God or in any Intelligent First Cause.
A religion undoubtedly has its basis in a
system of beliefs or doctrines which are
regarded by those who profess that
religion as conducive to their spiritual
well being, but it would not be correct to
say that religion is nothing else but a
doctrine or belief. A religion may not
only lay down a code of ethical rules for
its followers to accept, it might
prescribe rituals and observances,

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ceremonies and modes of worship which are

regarded as integral parts of religion,
and these forms and observances might
extend even to matters of food and dress.”

39. Religious scriptures, which are main source of

Hinduism are the foundation on which faith of Hindus

is concretised. The epic Valmiki Ramayana is the

main source of knowledge of Lord Ram and his deeds.

The composition of Valmiki Ramayana dates back in the

period Before Christ (BC). The Valmiki Ramayana is

of period earlier to Mahabharata and Srimad

Bhagwadgita. The period in which Valmiki Ramayana

was composed is much prior to beginning of Christian

era. For the purposes of this case, it is sufficient

to notice the statement of Suvira Jaiswal (PW-18), a

witness produced by plaintiff of Suit No.4 as

historian. She in her statement states “the period

of Valmiki Ramayana is recorded as 300 BC - 200 BC”.

Various scholars and others date the Valmiki Ramayana

to much older period but it is not necessary to dwell

in the said question since for our purpose, it is

sufficient that Valmiki Ramayana was composed in an

era Before Christ.

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40. Valmiki Ramayan, Balakand, Canto XVIII Shlokas 8

to 12 refers to birth of Lord Ram with planetary

situation. The above Shlokas depict that Lord of the

Universe, “Vishnu” was born as son of Kaushalya.

Valmiki Ramayana contains ample description of birth

of Lord Ram as incarnation of Vishnu, as son of

Dasratha and Kaushalya at Ayodhya. Shlok 10 tells

about birth of Lord Ram as son of Kaushalya, which is

extracted as below:-

प्रोमाने जगन्नाथं सवलोकनमृ तम् । कौसाजनयद् रामं

िदलणसंयुतम् ॥

(Balakanda 18.10)

Kaushalya gave birth to a son who was

the Lord of the whole world. He was a
person adored by all the people. He was
invested with divine symptoms.
It was not birth of an ordinary man.
Ayodhya was blessed with the arrival of
the Lord of the whole world, even then
Aligarh Historians say that Ayodhya was
never sacrosanct because of the birth of
Rama.

41. The Epic, thus, associate the birth of Lord Ram

with Ayodhya. It is, however, true that Valmiki

Ramayana does not gives any description of place of

birth except that Lord Ram was born to Kaushalya at

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Ayodhya in the Palace of King Dasratha. The next

religious text, which is referred to and relied by

plaintiff of Suit No.5 and other Hindu Parties is

Skanda Purana. In Skanda Purana, reliance has been

placed on Ayodhya Mahatmya of Vaisnavakhanda. The

above Ayodhya Mahatmya of Vaisnavakhanda of Skanda

Purana has been filed as Ext. 93 in Suit No.5. The

Skanda Purana has been translated into English by Dr.

G.V. Tagare published from Motilal Banarasidass

Publishers Private Limited, Delhi, which shall also

be referred to while considering the relevant versus

of Skanda Purana. Book II of Skanda Purana is

Vaisnavakhanda. Different sections of Vaisnavakhanda

deals with Mahatmya of different subjects. Section

VII deals with Vaisakhamasa-Mahatmya, Section VIII

deals with Ayodhya-Mahatmya and Section IX deals with

Vasudeva-Mahatmya. Skandamahapuranam was published

by Khemraj Shrikrishnadas. (Ext. 93) published by

Shri Venkateshwar Steam Press, Mumbai. Translation

of Dr. G.V. Tagare is of the published Skanda Purana

from Shri Venkateshwar Steam Press, Mumbai. Chapter

X of Ayodhya-Mahatmya contains 87 Shlokas. M/s.

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Khemraj Shrikrishnadas, proprietor, Shri Venkateshwar

Steam Press, Mumbai reprinted by Nag Publishers, New

Delhi.

Shlokas 18 to 25, which are relevant are as follows:-

तस्मात स्थान् त ऐशाने रामजन्म प्रवततर् े। जन्मस्थानमदं प्रोक्त ं मोादफलसाधनम।।18।।

्
वघ्नेश्वरात प् वभर् ागे वासष्ठादू रे तथा।ु लौमशात
्पिश्चमे भागे जन्मस्थान ं ततः स्मतम॥19॥ृ

To the north-east of that spot is the

place of the birth of Rama. This holy spot
of the birth is said to be the means of
achieving salvation etc. It is said that
the place of birth is situated to the east
of Vighnesvara, the north of Vasistha and
to the west of Laumasa.

यद् दृष्द्वा च मनष्यस्यु गभवर् ासजयो भवते

।् वना दानेन तपसा वना तीथवनर् ा मखै:॥20॥
नवमीदवसे प्राप्ते व्रतधार ह मानव:।
स्नानदानप्रभावणे मच्यतेु जन्मबन्धनात॥ ् 21॥

Only by visiting it a man can get rid

of staying (frequently) in a womb (i.e.
rebirth). There is no need for making
charitable gifts, performing penance or
sacrifices or undertaking pilgrimages to
holy spots. On the Navami day the man
should observe the holy vow. By the power
of the holy bath and charitable gifts, he
is liberated from the bondage of births.

कपलागोसहस्राण यो ददात दने दन।े तत्फलं

समवाप्नोत जन्मभमेू : प्रदशनर् ात॥ ् 22॥
आश्रमे वसतां पंसांु तापसानां च यत ् फलम। ्

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राजसयसहस्राणू प्रतवषार्िग्नहोत्रत:॥23॥

By visiting the place of birth, one attains

that benefit which is obtained by the person who
gives thousands of tawnycoloured cows everyday.
By seeing the place of birth, one attains the
merit of ascetics performing penance in
hermitage, of thousands of Rajasuya sacrifices
and Agnihotra sacrifices performed every year.

नयमस्थ ं नरं दृष्ट्वा जन्मस्थाने वशेषत:। मातापत्रोगुरूर्

णाञ्च भिक्तमद्वहतां सतामु ॥24॥ ्

तत्फलं समवाप्नोत जन्मभमे: प्रदशनर् ातू ॥25॥ ्

(Adhyaya 10, p.293R.)

By observing sacred rites,

particularly at the place of birth, he
obtains the merit of the holy men endowed
with devotion to their mother and father
as well as preceptors.”

42. The above Shlokas describes the location of

Ram Janma Asthan. Legends to identify the Ram

Janma Asthan is mentioned in the Shlokas,

which is situated to the east of Vighnesvara

to the north of Vasistha and to the west of

Laumasa. During arguments, Shri P.N. Mishra,

learned counsel had referred to Srimad

Skandapuranam, whether the above legends

mentioned in the Ayodhya Mahatmya can lead to

verification of Ram Janma Bhumi is a

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contention between parties where both the

parties have taken divergent stand. Learned

counsel appearing for Hindu Parties submits

that the present place where Ram Janma Bhumi

is claimed is the same as has been described

in Ayodhya Mahatmya, which is the faith and

belief carried by lakhs of Hindus from ancient

time till date. In the oral evidence led by

both the parties, the witnesses have deposed

proving the legends mentioned in Ayodhya

Mahatmya and they deposed that the place which

is claimed as Ram Janma Bhumi by the Hindus is

Ram Janma Asthan as per description given in

Ayodhya Mahatmya. The belief and faith of

Hindus that place of Ram Janma Bhumi as is

worshipped on date is the place of worship,

which is being spoken through ancient

scriptures and lakhs of Hindus are carrying

that belief from ancient period. O.P.W.1

Mahant Ram Chandra Das Digamber, appeared as

witness for plaintiff in Suit No.5, he stated

that birth of Lord Ram at Ayodhya is proved by

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the descriptions in our Vedas, Upnishads,

Smhitas, Smritis etc. The witnesses

specifically referred to Ayodhya-Mahatmya of

Skanda Purana and state that birth place of

Lord Ram is the sanctum sanctorum, i.e., the

disputed site where Ram Lalla is sitting at

present. The statement of O.P.W.1 has been

referred to and has been extensively relied by

Justice Sudhir Agarwal in his judgment.

Following is his statement where he relied on

Ayodhya-Mahatmya of Skanda Purana:-

“It is the same Ayodhya, which is the

present site. Lord Rama was born at this
place. While giving the boundary in its
behalf, there is clear reference in all
the above mentioned Hindu treatises. The
paper No.107C/75 is before me. It
contains clear mention in this behalf in
the Ayodhya Mahatmya under the Skanda
Purana. The birthplace of Lord Rama and
the sanctum sanctorum are the disputed
site, where
Ramlala is present at present.” (E.T.C.)

43. O.P.W.16 Jagadguru Ramanandacharya Swami

Rambhadracharya states in his statement that

disputed site is a Ram Janma Bhumi, which is

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being so believed from time immemorial by

faith and tradition of Hindus.

In his statement, he states:-

“According to my studies and

knowledge, the Ayodhya situated disputed
site is Sri Ramjanmbhumi, which has been
recognised as the birthplace of Lord Rama
by followers of Hinduism from time
immemorial on basis of faith, tradition
and belief and the said place has been
continuously worshiped.
“(E.T.C.)

44. In his examination-in-chief Jagadguru

Ramanandacharya Swami Rambhadracharya has also stated

that in Ayodhya-Mahatmya birthplace of Lord Shri Ram

has been clearly described. Paragraph 25 of the

examination-in chief is as follows:-

“25. I am familiar with the Ayodhya

Mahatmya of the Vaishnav Khand of Skand
Puran published in 1966 in the press
established by Shri Krishnadasatmaj
Kshemraj Shresthi in which the birthplace
of Lord Shri Rama has been clearly
described. The photocopy of the cover
page and the photocopy of Shloka Nos. 1 to
25 on page No.292 of chapter 10 of this
book is enclosed with this affidavit as
enclosure1 which is the true photocopy of
the original book.”

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45. The witness was not put to any cross-

examination regarding non-existence of legends

to identify Ram Janma Bhumi. Mahant Ram Vilas

Das Vedanti, DW-2/3 in his examination-in-

chief has also relied on Ayodhya Mahatmya,

Vaisnavakhanda, Skanda Purana in paragraph

24. He states as under:-

“24. That, Ayodhya Mahatamya has been

described in Vaishnav-volume of Skand
Puran, famous book of Hindus. Disputed
land has been explicitly described as a
birthplace of God Sri Rama in it.
Relevant lines of Vaishnav Volume of
Ayodhya Mahatamiya are as under:-

“Vedvyas describing the importance

of Ayodhya has written in Vaishnav
Volume of Skand Puran that one
should make darshan of Ayodhya with
respect – devotion for the
fulfilment of all desire. One
should, visit the Ayodhya on the
third Navratra, chanting bhazans in
the month of Chaitra. Yatra of Shri
Ram Navami in Ayodhya commence from
the third Navratra of Chaitra
month. This yatra is recognized
for obtaining divine and progeny
and pleasure. The scene with
various types of music and dance is
alluring and one is protected by
it, there is no doubt in it. High
ascetic, devotee person lives in
the western side of Ramjanambhoomi,
the land known as Pindarak. The
land worshipable with flowers etc.

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Men get skill from this pooja.

People perform pooja with due
procedure. Worship of Pindarak
should be done after taking bath in
Saryu River. Sinful person should
do its pooja for keeping the lust
of the world away during holy
nakshtra of
Navratras. Worship of God Ganesh
is performed in the western side
for removing obstacles.
Ramjanambhoomi is situated at
northeastern corner. This land
which provides salvation is called
Janambhoomi or Janamsthan.
Vashishta Kund is in the east of
Vigneshwari. Ramjanambhoomi is in
the north side of Vasistha Kund and
it becomes clear from the word that
Ramjanambhoomi is in the north of
Vasistha Kund. One should meditate
Janamsthan in the western part of
Lomas Ashram.”

46. Swami Avimuktswaranand Sarswati, DW20/2 in his

statement has referred to and relied on Ayodhya

Mahatmya of Skanda Purana in his examination-in-chief

in paragraph 35. He stated that “Ayodhya is a holy

place as was described in the Book Ayodhya Mahatmya”.

This book contains “the details about the Ram Janma

Bhumi, but did not mention about any mosque”. The

witness was cross-examined with regard to his

statement made in paragraph 35. He in his cross-

examination has said that he has seen Bara Sthan,

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Nageshwar Nath Temple, Lomash Rishi hermitage,

Vighnesh Pindarak and

Vashishta Kund. In his cross-examination, he

states:-

“Learned advocate cross examining the

witness draw the attention of witness
towards Para-35 of his examination in
chief affidavit. Witness in reply to a
question said that darshan of Shri
RamJanam Bhoomi Temple was referred
therein. From “Other Temples” referred in
this para. I mean Hnaumangarhi and Kanak
Bhawan. Besides I have seen Bara Sthan,
Nageshwar Nath Temple, Lomash Rishi
hermitage, Vighnesh Pindarak and Vashishta
Kund. Vighnesh and Pindarak are not
temples. These are the name of places.
Only a large piece of stones are there. I
have in Para-35 of my examination in chief
affidavit stated that I have visited
Ayodhya on a number of times. During
these visits, I had taken darshan for a
number of times, but not during every
visit.”

47. In his examination-in-chief, he has stated about

visit to Ayodhya following the procedure given in

Skanda Purana and having darshan accordingly. He

also referred in his examination-in-chief that he got

great assistance from the stone boards fixed by Shri

Edward during the time of British Rule. In paragraph

36 of the examination-in-chief, he stated as

follows:-
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“36. That, I have also once visited

Ayodhya following the procedure given in
Skand Puran and took darshan of Shri
RamJanam Bhoomi. During that visit, I got
great assistance from the stone boards
fixed by a higher officer Shri Edward,
during the time of British Rule, which
were fixed in accordance with the serial
prescribed in Skand Puran and proves the
then
geographical situation.”

48. With regard to paragraph 36 of his examination-

inchief witness was cross-examined in which

crossexamination, he stated that he had darshan of

Ram Janma Bhumi following the legends in Ayodhya

Mahatmya. Referring to stone fixing by Shri Edward in

British Rule (1901-1902), he submits that he has seen

stone fixed by legends at Bara Sthan, Ram Janma

Bhumi, Pindarak, Lomash, Vighnesh and Vashishtkund.

He further had stated that the stone at Lomash Ashram

was fixed in the east of Ram Janma Bhumi Mandir. In

his cross-examination, he states following:-

“I have seen five-six stone boards. These

stone boards were fixed at “Bara Sthan”,
Ram Janam Bhoomi, Pindarak, Lomash,
Vighnesh and Vashishtkund and Vighneshwara
respectively. I have seen these stone in
2001 or 2002. I have seen these stones
together in 2001 or 2002. I have seen
these stones regularly whenever I visited
there. Stone at Lomash Ashram was fixed
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in the east of east north corner of the

Mandir. This stone was in the eastern
side on the way back from Janam Bhoomi.
Stone at Pindarak, is in the northern side
of the Janam Bhoomi. There is a Sharma Ka
Mandir located near this stone. Stone at
Vighnesh was adjacent to Pindarak. This
stone was at a height of four to five feet
from the ground level and buried in to
ground up to two to two and half feet in
depth. These stones were two to four feet
in thickness. I do not remember as which
number written on which stones. Stone at
Vighneswara was in the western side of
Janam Bhoomi and at some distance from
Vashishta Kund. I have visited the
Vashistha Kund. It is, perhaps at the
south west corner of Janam Bhoomi. It is
at a distance of about two to two and half
hundred yards. I have seen this stone
during my first visit and also during my
last visit. The material engraved thereon
was in both the languages i.e., English
and
Hindi.”

49. Witnesses, thus, clearly proves the location of

Ram Janma Bhumi as per legends given in Ayodhya

Mahatmya of Skanda Purana. Another witness DW3/7,

Mahant Ramji Das in his cross-examination has relied

on Ayodhya Mahatmya, which mentioned about the

birthplace. He testifies the situation of Ram Janma

Asthan as per Ayodhya Mahatmya. DW3/14 Jagat Guru

Ramanandacharya Swami Haryacharya. In his

examination-in-chief, he placed reliance on Ayodhya

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Mahatmya of Skanda Purana. In his examination-in-

chief, he states that Lomas Rishi Ashram is in the

east of the present Shri Ram Janma Bhumi. He further

states that at place of Lomas Rishi Ashram, now,

there is a Ramgulella Mandir and a stone in the name

of Shri Lomasji. In paragraph 31 of the examination-

in-chief, he states:-

“31. Lomas Rishi Ashram is in the east of

the present Shri Ramjanm Bhoomi Mandir,
about which a case is subjudice. Where
there is a Ramgulella Mandir, there is a
stone in the name of Shri Lomasji.
Bighneshwar Bhagwan is in the west side of
Ram Janm Bhoomi Mandir, which is in the
west side of Vasisth Bhawan Mandir. The
proof is enclosed at list ‘A’ of an
affidavit.”

50. It is further relevant to notice that witness who

appeared on behalf of the plaintiff of Suit No.4 were

also cross-examined in reference to Ayodhya Mahatmya

of Skanda Purana. PW13, Suresh Chandra Mishra,

appeared on behalf of plaintiff of Suit No.4 is a

historian. PW15, Sushil Srivastav appeared as

historian on behalf of Muslim Parties, plaintiff of

Suit No.4 in his cross-examination with regard to

Ayodhya Mahatmya, he shows his agreement about what

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is mentioned in the Ayodhya Mahatmya about birthplace

of Lord Ram. In his cross-examination, he states,

following:- “It is written about birth of Rama in

Ayodhya Mahatmya. I agree with what is mentioned in

Ayodhya Mahatmya about the birth place of Rama. The

hermitage of sage Lomash has found mention in this

book, that is, it is described therein. It also

describes Vighneshwar sthan. The hermitage of seer

Vashishtha has also found

description in Ayodhya Mahatmya”. (ETC)

From references about the hermitages of

sage Lomash and seer Vashishtha in Ayodhya
Mahatmya, the birthplace of Rama has been
located. As per Ayodhya Mahatmya, Ram
Janam Sthan is situated West of Lomash
Rishi Ashram, east of the Vighneshwar
temple and north of Vashishtha Muni
Ashram. I did not come across the
Vighneshwar temple; rather, I saw a pillar
with the word “Vighneshwar” engraved
thereon. I did not come across the
hermitage of sage Lomash. I also did not
see the hermitage of seer Vashishtha, but
people told me about him”. (ETC)

51. One Dr. Sita Ram Rai, PW-28 also appeared for

plaintiff in Suit No.4, who was cross-examined with

regard to Skanda Purana. In his statement, he states

that it will not be correct to say that in Ayodhya

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Mahatmya, the boundary of Ram Janma Bhumi and its

position has been given. He, however, states that it

is true that legends Pindarak, Vighneshwar, Vashishth

and Lomesh are present. He stated in his statement

that Couplets in Ayodhya Mahatmya indicates about the

visit towards Janma Asthan and not the clarity of its

boundaries. He stated following in his

crossexamination:-

“In my view it will not be correct to say

that in Ayodhya Mahatamya Chapter the
boundary of Ram Janam Bhoomi and its
position has been given. On this point
the learned advocate drew attention of the
witness to couplet 14 to 25 of Paper
No.107C 1/75 (On this the advocate of
Plaintiff Shri Zaffaryab Jilani raised
objection that the paper has not been
proved and, as such permission to ask
question thereon should not be given.
(Reply to it will be given later on).
After reading the above couplet the
witness said that I have understood its
contents and said that boundary of Ram
Janam Bhoomi has not been clearly
demarcated in it and afterwards said that
boundary has not been given in it. The
learned advocate again made the witness to
read line 18-19 of the couplet and after
reading it the witness said that the
boundary of Ram Janam Bhoomi has not been
clearly demarcated. There is no mention
of all the four directions, which is
necessary for the boundary. It is true
that in the couplets Pindarak,
Vighneshwar, Vashishth and Lomesh are

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mentioned in the above couplets. After

th
listening first line of the 18 couplet
from the learned advocate cross-examining,
the witness replied that from this place
on has to go towards, Eshan direction for
Janam Bhoomi. The meaning of “Pravartate”
is that one who goes. The meaning of
‘Vighneshwar purva bhage’ is that on the
eastern side of Vighneshwar. ‘Vashishthth
uttare’ means on the Northern side of
Vashishth. ‘Lomsath Paschime’ means on
the Western side of Lomesh.
‘Janmasthanam tathati” means from there to
Janmasthan. What I have said above
indicates about the visit towards
Janamasthan and not the clarity of its
boundary.”

52. According to the above witness, clear boundaries

have not been given of the Ram Janma Bhumi but

indications have been given about the legends

situated on eastern, western and northern side and

how to reach the Ram Janma Bhumi. Accordingly, the

above are sufficient indication to locate the Ram

Janma Bhumi. Boundaries as required to refer in a

sale or lease documents were not contemplated to be

given in such ancient Text as Ayodhya Mahatmya of

Skanda Purana. As noted above, Dr. Rajeev Dhavan

refuting the identification, the marks given in

Ayodhya Mahatmya of Skanda Purana has placed heavy

reliance on the
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Historian’s reports to the Nation dated 13.05.1991.

Dr. Rajeev Dhavan refuting the arguments based on the

locations of Ram Janma Bhumi as given in Ayodhya

Mahatmya of Skanda Purana rely on the Historian

Reports to Nation. Arguments made by Shri P.N.

Mishra, relying on book Ayodhya by Hans Bakker has

been refuted by

making following submissions:-

(a) Hans Bakker proceeds on the

presumption that Ayodhya is not a real
city but a figment of the poet’s
imagination;

(b) He proceeds by equating Ayodhya to the

city of Saketa;

(c) Even while mapping the birthplace from

Ayodhya Mahatmya, he cites
considerable difficulties and
ultimately states that Babri Masjid is
built at the birthplace as is
confirmed by local belief.

(d) Even the impugned judgment records

that Hans Bakker proceeds on the basis
of conjectures without assigning any
reason.“

53. The Historian’s Report to Nation, which is Ext.

No.62 in Suit No.4 may be first considered. Report

referred to as a Historian Report to the Nation was

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their comments on the stand of Vishva Hindu Parishad

in the Ayodhya dispute. The four Historian in their

letter to the Government of India opined “Our study

shows neither any evidence of the existence of a

temple on the site of Babri Masjid nor of the

destruction of any other structure there prior to the

construction of the mosque.”

54. The above observations in the report that the

absence of any such reference to ancient Sanskrit

text makes it very doubtful that belief in Ram Janma

Asthan is of such respectable antiquity as is being

made out. The epic Valmiki Ramayana as noticed above

which was a composition before the start of Christian

era states Ayodhya as birth of Lord Ram at Ayodhya at

King Dasratha’s palace. The report jumped to the

conclusion that it is even doubtful that belief is

earlier than the late Eighteenth Century. Further

observations were made in the report regarding period

of composition of Skanda Purana, the report comes to

the conclusion that Ayodhya Mahatmya has to be of

period towards the end of Eighteenth Century or the

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beginning of Nineteenth Century. It is necessary to

consider as to whether observations made in the

report that Ayodhya Mahatmya of the Skanda Purana is

composition of end of Eighteenth Century or the

beginning of Nineteenth Century or it belongs to an

earlier period.

55. P.V. Kane in History of Dharmasastra, Volume 5,

Part II published by Bhandarkar Oriental Research

Institute, Poona (1962) has elaborately dealt with

Puranas and their date or period. P.V. Kane has

also referred to Skanda Purana in VII Khand as

published from Venkateshwar Press, referred to above.

After elaborate discussion P.V. Kane arrives at the

conclusion that Skanda Purana cannot be placed

earlier than Seventh Century and not later than Ninth

Century A.D. Following is the discussion on Skanda

Purana and its dating by P.V. Kane in “History of

Dharamasastra”:-

“Skanda — This is the most extensive of

Puranas and poses perplexing problems. It
is found in two forms, one being divided
into seven khandas, viz. Mahesvara,
Vaisnava, Brahma, Kasi, Avantya, Nagara
and Prabhasa, the other being divided into

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six samhitas, viz. Sanatkumara, Suta,

Sankari, Vaisnavi, Brahmi and Saura. The
Skanda in seven khandas has been published
by the Venk. Press and the Sutasamhita
with the commentary of Madhavacarya has
been published by the Anan. Press, Poona.
The extent of the Skanda is variously
given as 81000 slokas, at 100000 slokas
(vide PRHR p. 158), at 86000 (in PRHR p.
159). The god Skanda does not figure
prominently in this Purana named after
him. The Skanda is named in the Padma V.
59. 2 Skanda I. 2. 6. 79 is almost in the
same words as Kiratarjuniya (II. 30
'sahasa vidadhita na kriyam'). Skanda,
Kasikhanda 24 (8 ff) is full of Slesa and
Parisankhya in the style of Bana as in
'yatra ksa-panaka eva drsyante
maladharinah' (verse 21) or 'vibhramoyatra
narlsu na vidvatsu ca karhicit’ (verse 9).
Natyaveda and Artha-sastras are mentioned
in Kasikhanda (Purvardha 7. 4-5), Dhan-
vantari and Caraka on medicine are
mentioned in Kasikhanda (Purvardha 1.71);
the word Jhotinga occurs in Kasikhanda
72.74 (Jhotinga raksasah krurah). Skanda
is quoted on topics of Dharmasastra in
early commentaries and digests. The Mit.
on Yaj. II. 290 mentions it in connection
with the status of vesyas (courtezans).
Kalpataru on vrata quotes only 15 verses
from it, Kalpataru on tirtha (pp. 36-39,
32, 46, 130-135) quotes 92 verses from it,
on dana only 44, on niyatakala 63 verses,
18 verses on Rajadharma (on
Kaumudimahotsava), only 4 in sraddhakanda
and 3 in grhasthakanda. Apararka quotes
only 19 verses from it; one quotation
indicates Tantrik influence (vide note).
The Danasagara cites 48 verses on dana
from it and the Sm. C. only 23 in all.
Considering the colossal figure of slokas
in the Skanda it must be said that it is
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rather sparingly quoted in the

Dharmasastra works. A verse in it seems to
echo the very words of Kalidasa and quotes
the view of Devala. In such a huge work
interpolations could easily be made. So it
is difficult to assign a definite date to
it. A ms. of the Skanda in the Nepal
Durbar Library is written in characters
which belong to the 7th century A.D.
according to Haraprasad Shastri (vide Cat.
of Nepal Palm-leaf mss. p. LII.)

It would be not far from the truth to

say that the Skanda cannot be placed
earlier than the 7th century A.D. and not
later than 9th century A.D. on the
evidence so far available.”

56. There is no need of any further discussion

regarding period of composition of Skanda Purana in

view of evidence, which was led on behalf of

plaintiff of Suit No.4 itself. PW20 Prof. Shirin

Musavi in her statement has stated that geographical

local of Ramkot found description in the Skanda

Purana. She clearly stated that Skanda Purana

belongs to Ninth Century A.D.

Following is her statement in above regard:-

“I have read about a place called Ramkot in

Ayodhya. The geographical location of
Ramkot finds description in Skanda Purana.
But it is not clear. It is true that a
certain place in Ayodhya is known by the
name of Ramkot from the end of 16th
century. Skanda Purana is attributed to,
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that is, stated to be belonging to the 9th

century.” (E.T.C.)

57. In above view of the matter, the opinion of four

Historians in their report that Ayodhya Mahatmya of

Skanda Purana was prepared towards the end of

Eighteenth Century or the beginning of Nineteenth

Century cannot be accepted. It is further relevant

to notice that Ayodhya Mahatmya of the Skanda Purana,

the witnesses examined in Suit No.5 on behalf of the

Hindu Parties as well as other witnesses examined on

behalf of the Hindu parties were cross-examined on

various Shlokas of Ayodhya Mahatmya of Skanda purana

but not even a suggestion was made to any of the

witnesses that Ayodhya Mahatmya in Skanda Purana was

composed in end of Eighteenth Century or beginning of

Nineteenth Century. Thus, the opinion of the

Historian’s report that Skanda Purana does not give

support to any belief in Ram Janma Asthan extending

since long is unacceptable.

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58. Another mistake which has crept in the

Historian’s report is that while recording the

legends mentioned in the Ayodhya Mahatmya, the report

refers to “Laumasa” with present Rin Mochan Ghat.

With regard to above report states following:-

“According to local Hindus beliefs Laumasa

or the place of Laumasa is identical with
the Rin Mochan Ghat.”

59. The above conclusion was drawn by the report

referring to local Hindus beliefs whereas existence

of Laumasa and its situation and identification is

well established since the year 1901-02, where stone

pillar has been placed, has been proved by the

witnesses, who appeared on behalf of plaintiff in

Suit No.5. The statement of Swami Avimuktswaranand

Sarswati has already been referred to. Due to the

above error, the placement of Ram Janma Bhumi by the

Four Historian has been faulted. The identification

of Lomas by four Historians as Rin Mochan Ghat is

palpably wrong. In Suit No. 2 of 1950, a site plan &

map were prepared by Shiv Shankar Lal, the Court

Commissioner on 01.04.1950, which has been relied by

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the High Court and not questioned by anyone. In the

above site plan, which has been printed in the

judgment of Justice S.U. Khan at Page 30 of Volume I

and as Appendix 2C of judgment of Justice Sudhir

Agarwal mentions that ‘Lomas’ as South Eastern corner

of Janma Bhumi, which clearly negate the placement of

Lomas by four Historians as Rin Mochan Ghat on the

bank of Saryu. There are few other observations,

which have been made in the report, which cannot be

approved. The report mentioned that Skanda Purana

refers to Swargdwar Tirth on which 100 verses have

been devoted to the description of Swargdwar whereas

only 8 verses have been devoted to Janma Asthan,

which means that Swargdwar Tirth was more important

than Janma Asthan. Whether describing Janma Asthan

in 8 verses, its description and location shall lose

its importance? Answer is obviously no. It may be

further noticed that whole report is nothing but

objection to the case of the Vishwa Hindu Parishad as

has been mentioned in the report in very beginning.

The report, thus, has been prepared as the counter to

the Vishwa Hindu Parishad case, which itself suggests

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that the four Historians had not treated the entire

subject dispassionately and objectively.

60. Justice Sudhir Agarwal in the impugned judgment

has elaborately dealt with the above reports by four

Historians and found it unworthy of reliance. Very

strong observations have also been made with regard

to the report of Historian as well as of some

witnesses in following words:-

“3622. We may mention here that though the

said report claims to have been written by
four persons but in fact it was not signed
by Sri D.N.Jha. The opinion of an alleged
expert, which is not based on her own
study and research work but reflection of
other's opinion, in our view, shall not
qualify to be considered relevant under
Section 45 of the Evidence Act as well as
the law laid down by the Apex Court in
State of Himachal Pradesh Vs. Jai Lal
(supra).

3623. Normally, the Court does not make

adverse comments on the deposition of
witness and suffice it to consider whether
it is credible or not but we find it
difficult to resist ourselves in this
particular case considering the
sensitivity and the nature of dispute and
also the reckless and irresponsible kind
of statements, and the material got
published by the persons claiming to be
Expert Historian, Archaeologist etc.
without making any proper investigation,
research or study in the subject.

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3624. This is really startling. It not

only surprises us but we are puzzled. Such
kind of statements to public at large
causes more confusion than clear the
things. Instead of helping in making a
cordial atmosphere it tends to create more
complications, conflict and controversy.
Such people should refrain from making
such statements or written work. They must
be extremely careful and cautious before
making any statement in public on such
issues.

3625. The people believe that something,

which has been said by a learned, well
studied person, would not be without any
basis. Normally they accept it as a
correct statement of fact and affairs.
Normally, these persons do not find a
stage where their statement can be
scrutinized by other experts like a cross-
examination in a Court of law. In legal
terminology, we can say that these
statements are normally ex parte and
unilateral. But that does not give a
license to such persons to make statements
whatsoever without shouldering
responsibility and accountability for its
authenticity. One cannot say that though I
had made a statement but I am not
responsible for its authenticity since it
is not based on my study or research but
what I have learnt from others that I have
uttered. No one, particularly when he
claims to be an expert on the subject, a
proclaimed or self styled expert in a
History etc. or the facts or events can
express some opinion unless he/she is
fully satisfied after his/her own research
and study that he/she is also of the same
view and intend to make the same statement
with reasons.”

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61. One more aspect of the report needs to be

noticed. In the report, the refence to excavation

made by Prof. B.B. Lal (of Archaeological Survey of

India) to identify sites of Ramayana have been made.

The said excavation was conducted by Shri B.B. Lal in

1975-76.

Towards south of the disputed structure, certain

trench were excavated and Shri B.B. Lal opined that

certain pillar bases were found sustaining pillars

and show a structure in the south of Babri Masjid.

In the report, after referring to excavation by Shri

B.B. Lal, the report concludes:-

“Finally, there is nothing to show that

the pillar bases existing at a distance of
about 60 ft to the south of the Baburi
Masjid structure are in alignment with the
pillars used in the Baburi Masjid. In
fact no importance can be attached to the
structure postulated on the strength of
the pillar bases. It could be a small
verandah, which may have been used either
as an animal shed, or just for living
purposes. Such structures are found in
that area even now.”

62. The excavation of disputed site leaving the area

on which makeshift structure was situate was carried

by Archaeological Survey of India (A.S.I.) under the

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orders of the High Court dated 05.03.2003. The

detailed report by A.S.I. has been submitted which

shall be separately considered. The opinion formed

by four Historians on the basis of certain excavation

made by Shri B.B. Lal in the year 1975-76 has now

become not much relevant in view of elaborate

exercises conducted by A.S.I. under the orders of

High Court. Hence the Historian’s report cannot be

relied due to above subsequent massive excavation

conducted by A.S.I.

63. The submissions have been made by Dr. Dhavan in

reference to book on Ayodhya by Hans Bakker. The

book Ayodhya by Hans Bakker is a thesis submitted to

University of Groningen by Dutch Scholar H.T. Bakker

in 1984. The book has been published in 1986, which

contains details which is in three parts. Three maps

were also prepared of the Ayodhya including place

like Ram Janma Bhumi, Babri Masjid and other legends

of importance. Hans Bakker in his book has

elaborately considered the Ayodhya Mahatamya, which

includes consideration of Ayodhya Mahatmya published

by Venkateshwar Press, Mumbai as noted above as well

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as few manuscripts of Ayodhya Mahatmya received from

different sources. He has compared the manuscripts,

one received from Bodleain Library, Oxford, London,

Vrindawan Research Institute, Oriental Institute

Baroda and Research Institute, Jodhpur. After

elaborate comparison and considering all relevant

aspects, Hans Bakker in Chapter XXI has opined that

original location of the Janma Asthan is

comparatively certain since it seems to be attested

by the location.

Following statement is made by Bakker:-

“Notwithstanding all the difficulties

discussed above, the original location of
the Janmasthana temple is comparatively
certain since it seems to be attested by
the location of the mosque built by Babur,
in the building of which materials of a
previous Hindu temple were used and are
still visible. The mosque is believed by
general consensus to occupy the site of
the Janmasthana.
After the destruction of the original
temple a new Janmasthana temple was built
on the north side of the mosque separated
from it by a street.”

64. As far as maps prepared after discussing the

locations given in Ayodhya Mahatmya, different

versions of Ayodhya Mahatamya including one contained

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in the published version from Venkateshwar Press,

Mumbai, at the end, Hans Bakker concludes that the

five maps containing the scared topography of Ayodhya

and its ksetra according to the tradition of Ayodhya

Mahatmya based on survey carried out in the autumn of

1980 and spring of 1983. In the end, he states

following:- “The five maps enclosed present the

sacred topography of Ayodhya and its ksetra according

to the tradition of the Ayodhyamahatmya based on

surveys carried out in the autumn of 1980 and spring

of 1983. It was necessary to make a thorough

revision of sheet 63 J/1 of the 1 : 50,000 series

with regard to the topography of

Ayodhya town (Map III, scale 1 : 10,000).”

65. To support his submission that Ayodhya is not a

real city but a figment of the poet’s imagination as

was observed by Hans Bakker himself, following

passage from the book is referred by Dr. Dhavan:-

“If it has thus become clear that the town

of Ayodhya only figures in literature that
is predominantly legendary in character,
the question of the historicity of this
town may well be raised. To settle this
question we should first concentrate on
the early historical period, say up to the
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second century of the Christian era. The

name ‘Ayodhya’ is not attested by any
archaeological or epigraphical evidence
relating to this period.”

66. The above observation occurs in Chapter dealing

with the subject on “History of Saketa/Ayodhya from

600 BC to AD 1000”. After making the aforesaid

remarks, the conclusion which was drawn by Hans

Bakker is as follows:-

“Hence we conclude that the information

about Ayodhya in early Epic literature
does not furnish us with historical data
concerning an old city of that name, let
alone of the site AY.”

67. Hans Bakker, however, when proceeded to examine

the history, Bakker also considered the Jains and

Baudh’s Scriptures. Bakker subsequently held that

identity of Ayodhya and Saketa was started and

completed in the age of Guptas. The further

observations made in the book, which is to the

following effect:-

“The reification of the realm of saga

finally resulted in a general
acknowledgment of the identity of Ayodhya
and Saketa, that is the site AY, a process
which was completed in the age of the
Guptas. That the identification was not
yet universally acknowledged during the
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rule of the early Guptas seems to follow

from some Purana texts in which the Gupta
rulers are credited with sovereignty over
the real Saketa rather than over the
marvelous Ayodhya.
The identification of Ayodhya with Saketa
during this period is not only attested in
the Jaina sources but also in Sanskrit
saga to wit the Brahmandapurana 3.54.54
(Cp. Op.cit.3.54.5), and most consistently
in Kalidasa’s Raghuvamsa. It is only from
the period when the name Ayodhya was used
to denote an existing township that we may
expect to find corroborative
archaeological evidence. Such testimony
is indeed found among the inscriptions of
the later Guptas (5th century): an
inscription dealing from AD 436 describes
the donees of a gift as ‘Brahmins hailing
from Ayodhya’. A Gupta inscription of AD
533/4 mentions a nobleman from Ayodhya.
The spurious Gaya copperplate inscription
of Samudragupta, probably a fabrication of
the beginning of the 8th century,
describes Ayodhya as a garrison town.”

68. Thus, identity of Ayodhya has been attested and

corroborated by Sanskrit Scriptures and the

corroboration from the later Gupta period. Thus, the

earlier observation made was only to the effect that

Ayodhya is not attested by any epic literature, but

once it was identified by author himself, the earlier

observation loses its importance. As far as

observation of Bakker in which he equated the Ayodhya

to the city of Saketa, no exception can be taken.

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Saketa and Ayodhya has been used as synonyms in other

scriptures as well as historians. With regard to map

of birthplace after considering the entire materials,

Hans Bakker attests the location of birthplace. The

conclusions arrived by Hans Bakker cannot be said to

be based on surmises or conjectures.

69. One more aspect relevant for the period in

question may be considered. DW2/1-1, Rajinder Singh,

appeared as a witness for defendant No.2 in Suit

No.4, as a person having interest in the study of

religious, cultural and Historical books of Sikh

Cult. In examination-in-chief, he has referred to

several books about Sikh Cult and history. He also

stated in his examination-in-chief that Guru Nanak

Devji had sought darshan of Shri Ram Janma Bhumi

Temple at Ayodhya. The period during which Guru

Nanak Devji went to Ayodhya and had darshan stated to

be is 1510-1511 A.D. In paragraph 11 of examination-

in-chief, he states:-

“11. Guru Nanak Devji, after getting the

appearance of God on the auspicious day,
Bhadrapad Poornima, 1564-Vikrami = 1507
c.e. prepared him for going on pilgrimage.

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Then he went to Ayodhya via Delhi,

Haridwar, Sultanpur etc. Almost 3-4 years
have passed in this journey. Similarly
Guru Nanak Dev went on pilgrimage to see
Shri Ram Janam Bhoomi Mandir in 1567-1568
Vikrami = 1510-11 Christian era. It is
mentioned here that invader Babar has not
invaded India by that time.”

70. Alongwith his statement, he has annexed various

Janma Sakhies, which records visit of Guru Nanak

Devji at Ayodhya and Darshan of Ram Janma Bhumi.

Justice Sudhir Agarwal in his judgment has also

referred to various Janma Sakhies, which were

referred to and relied by the witnesses. Detailed

reference of Janma Sakhies, which have been referred

and relied by the witness is mentioned in paragraph 5

of the affidavit.

In paragraph 5 of examination-in-chief, he states:-

“5. I had studied a number of ancient

books in the form of edited and published
books about Sikh Cult and history which
include “Aadhi Sakhies (1758 Vikrami 1701
Christian era), Puratan Janam Sakhi Guru
Nanak Devji Ki (1791 Vikrami = 1734
Christian era), creation of Bhai Mani
Singh (Life-time 1701-1791 Vikrami 1644-
1734 Christian era) “Pothi Janmsakhi: Gyan
Ratnawali”, Bhai Bale Wali” (Shri Guru
Nanak Dev)
Janamsakhi” (1940-Vikrami = 1883 Christian
era) creation of Sodhi ManoharDas Meharban
(Life time 1637-1697 Vikrami = 1580-1640
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Christian era) “Sachkhand Pothi:Janamsakhi

Shri Guru Nanak Devji, creation of Babu
Sukhbasi Ram vedi (Eighth descendant of
Shri Laxmi Chand younger son of Guru Nanak
Devji) “Guru Nanak Vansh Prakash (1886
Vikrami = 1829 Christian era), creation of
Shri Tara Hari Narotam (Life-time 1879-
1948 Vikrami = 1822-1891 Christian era)
“Shri Guru Tirath Sangrahi” and famous
creation of Gyani Gyan Sigh “Tawarikh Guru
Khaira: Part-I (1948 Vikrami 1891
Christian era) etc. It is fully evident
from the information gained from these
books that disputed land is a birth place
of Shri Ramchanderji and Guru Nanak Dev
had sought the darshan of Shri Ram Janam
Bhoomi Temple at Ayodhya it is also proved
from these books that with the passage of
time Shri Guru Teg Bahadur and his son
Shri Guru Govind Singh have also sought
the darshan of Shri Ram Janam Bhoomi
Mandir at
Ayodhya.”

71. Janma Sakhies, which have been brought on the

record contains a description of visit of Guru Nanak

Devji to Ayodhya, where he had darshan of birthplace

of Lord Ram. It is true that from the extracts of

Janma Sakhies, which have been brought on the record,

there is no material to identify the exact place of

Ram Janma Bhumi but the visit of Guru Nanak Devji to

Ayodhya for darshan of Janma Bhumi of Ram is an

event, which depicted that pilgrims were visiting

Ayodhya and were having darshan of Janma Bhumi even

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before 1528 A.D. The visit of Guru Nanak Devji in

1510-11 A.D. and to have darshan of Janma Bhumi of

Lord Ram do support the faith and beliefs of the

Hindus.

72. It can, therefore, be held that the faith and

belief of Hindus regarding location of birthplace of

Lord Ram is from scriptures and sacred religious

books including Valmiki Ramayana and Skanda Purana,

which faith and beliefs, cannot be held to be

groundless. Thus, it is found that in the period

prior to 1528 A.D., there was sufficient religious

texts, which led the Hindus to believe the present

site of Ram Janma Bhumi as the birthplace of Lord

Ram.

Faith and belief regarding Janma Asthan during the

period 1528 A.D. to 31.10.1858.

73. During this period, “Sri Ramacharitmanasa” of

Gosvami Tulasidasa was composed in Samvat 1631

(157475 A.D.). The Ramacharitmanasa enjoys a unique

place and like Valmiki Ramayana is revered, read and

respected by Hindus, which has acquired the status of

an Epic in Hindu faith. Gosvami Tulasidasa in

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BalaKanda has composed verses, which are spoken

through Lord Vishnu. When Brahma appealed to Vishnu

to relieve the Devas, Sages, Gandharvas and earth

from the terror of Demon Ravana (Raavan), Lord Vishnu

said that I will take a human form and born to

Dasaratha and Kausalya in Kosalapuri. After Doha

186, Bala-Kanda in following three chaupaiyas

(Verses), Lord Vishnu says:-

जिन डरप मुिन िस सुरेसा । तुिह लािग धरहउँ नर बेसा ॥ अंस सिहत
मनुज अवतारा । लेहउँ िदनकर बंस उदारा ॥ १ ॥

“Fear not, O sages, Siddhas and Indra

(the chief of gods); for your sake I will
assume the form of a human being. In the
glorious solar race I shall be born as a
human being alongwith My part
manifestations.”
कप अिदित महातप कीा । ित कँ म पूरब बर दीा ॥ ते दसरथ कौसा पा ।
कोसलपुरी ं प्रगट नरभूपा ॥ २ ॥

“The sage Kasyapa and his wife Aditi

did severe penance; to them I have already
vouchsafed a boon. They have appeared in
the city of Ayodhya as rulers of men in
the form of Dasaratha and Kausalya.”

ित क गृह अवतरहउँ जाई । रघुकु ल ितलक सो चारउ भाई ॥ नारद बचन स

सब करहउँ । परम स समेत अवतरहउँ ॥ ३ ॥

“In their house I shall take birth in

the form of four brothers, the ornament of
Raghu’s line. I shall prove the veracity
of all that was uttered by Narada and
shall descend with my Supreme Energy
(परा).”
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74. The above chaupaiyas does not only refer to

Vishnu taking human form in Avadhpuri, i.e., Ayodhya

but the verse specifically mentions that he will take

human form at the house of Dasaratha and Kausalya.

The above verses do not only refer to birth of Ram at

Ayodhya but points out to “a place”, where he will

take human form, which is clearly depicted in the

words “tinha ke grha” (in their house of Dasaratha

and Kausalya).

75. Contesting parties have referred to and relied on

various Gazetteers, travelogues books relating to

this period. According to Hindu parties’ relevant

books and Gazetteers during the relevant period amply

proves the faith and belief of Hindus in the Janma

Asthan of Lord Ram, which was worshipped by Hindus

throughout. Dr. Rajeev Dhavan on the other hand

contends that Gazetteers of period prior to 1858

cannot be looked into and Gazetteers prepared under

the British Government after 1858 can be of some

assistance. He submits that Gazetteers prepared

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during the regime of East India Company cannot be

relied nor can be called Gazetteers. With regard to

all travelogues account published in different books,

Dr. Dhavan submits that no reliance can be placed on

the said accounts given by travellers, since they are

only all hearsay and they were only by their account

telling stories. It is necessary to first consider

as to whether Gazetteers and travelogues books can be

treated as an evidence by Court for considering the

issue, which had arisen before the Court in the suit

giving rise to appeals in question. The Evidence

Act, 1872 consolidated, defined and amend the law of

evidence. The evidence is defined in interpretation

clause, i.e., Section 3. The definition of evidence

as amended by Act 21 of 2000 is as follows:-

“Evidence”.— “Evidence” means and

includes—
(1) all statements which the Court permits
or requires to be made before it by
witnesses, in relation to matters of
fact under inquiry,

such statements are called oral evidence;

(2) all documents including electronic
records produced for the inspection of
the Court,

such documents are called documentary evidence.”

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76. Section 57 of the Evidence Act, enumerate the

facts of which the Court must take judicial notice.

Section 57 insofar as it is relevant for the present

case is as follows:-

“57. Facts of which Court must take judicial

notice.—The Court shall take judicial notice
of the following facts:—

(1) All laws in force in the territory of

India;
xxxxxxxxxxxxx

In all these cases, and also on all

matters of public history, literature,
science or art, the Court may resort for
its aid to appropriate books or documents
of reference.

If the Court is called upon by any

person to take judicial notice of any
fact, it may refuse to do so, unless and
until such person produces any such book
or document as it may consider necessary
to enable it to do so.”

77. The definition of facts, which Court must take

judicial notice is not an exhaustive definition.

Phrase “on all matters of public history, literature,

science or art” are wide enough to empower the court

to take into consideration Gazetteers, travelogues

and books. Gazetteers are nothing but record of

public history. The above provision is with a rider

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that if the Court is called upon by any person to

take judicial notice of any fact, the Court may

refuse to do so until and unless, such person

produces such book or any document. Both the parties

have cited several judgments of this Court, where

this Court had occasion to consider admissibility of

Gazetteers and other books in evidence and the value,

which is to be attached on statements contained in

Gazetteers, travelogues and books. In Sukhdev Singh

Vs. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288,

this Court held that

Gazetteer is an official document of some value as it

is compiled by experienced officials with great care.

Following observations were made in paragraph 10:-

“10. Xxxxxxxxxxxxxxxxxx

The statement in the District

Gazetteer is not necessarily conclusive,
but the Gazetteer is an official document
of some value, as it is compiled by
experienced officials with great care
after obtaining the facts from official
records. As Dawson Miller, C.J. has
pointed out in Fulbati case, AIR 1923
Patna 423, there are a few inaccuracies in
the latter part of the statement quoted
above, but so far as the earlier part of
it is concerned, it seems to derive
considerable support from the documents to
which reference has been made.”
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78. In Gopal Krishnaji Ketkar Vs. Mahomed Jaffar

Mahomed Hussein, AIR 1954 SC 5, this Court had

referred to and relied on the Gazetteer of Bombay.

In paragraph 4, the Court was examining nature of a

tomb which belong to Eighteenth Century. In

paragraph 4, this Court

Stated:-

“4. The shrine has a curious, and in some

respects legendary, history. Its origin is
lost in antiquity but the Gazetteer of the
Bombay Presidency tells us that the tomb
is that of a Muslim saint who came to
India as an Arab missionary in the
thirteenth century. His fame was still at
its height when the English made their
appearance at Kalyan, near where the tomb
is situate, in the year 1780. As they only
stayed for two years, their departure in
the year 1782 was ascribed to the power of
the dead saint.”

79. A Constitution Bench of this Court in Mahant Shri

Srinivas Ramanuj Das Vs. Surjanarayan Das and
Another, AIR 1967 SC 256 had occasion to consider
Puri Gazetteer of O’Malley of 1908. In the
Gazetteer, the history of Emar Math was addressed. It
was contended by the appellant before this Court that
Gazetteer cannot be treated as an evidence. The
Court held that Gazetteer can be consulted on matters
of public history. In paragraph 26, following was
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laid down:- “26. It is urged for the appellant

that what is stated in the Gazetteer cannot be
treated as evidence. These statements in the
Gazetteer are not relied on as evidence of title but
as providing historical material and the practice
followed by the Math and its head. The Gazetteer can
be consulted on matters of public history.”

80. This Court in Bala Shankar Maha Shanker Bhattjee

and Others Vs. Charity Commissioner, Gujarat State,

1995 Supp. (1) SCC 485 had occasion to consider

Gazetteer of the Bombay presidency, Vol. III

published in 1879. This Court held that Gazette is

admissible under Section 35 read with Section 81 of

the Evidence Act, 1872. It was held that the Court

may in conjunction with the other evidence may take

into consideration in adjudging the dispute in

question though it may not be treated as conclusive

evidence. The recitals in the Gazette with regard to

location of temple of Kalika Mataji on the top of the

hill was relied. In paragraph 22, following was laid

down:-

“22. …………………………………..It is seen that the

Gazette of the Bombay Presidency, Vol. III
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published in 1879 is admissible under

Section 35 read with Section 81 of the
Evidence Act, 1872. The Gazette is
admissible being official record
evidencing public affairs and the court
may presume their contents as genuine. The
statement contained therein can be taken
into account to discover the historical
material contained therein and the facts
stated therein is evidence under Section
45 and the court may in conjunction with
other evidence and circumstance take into
consideration in adjudging the dispute in
question, though may not be treated as
conclusive evidence. The recitals in the
Gazette do establish that Kalika Mataji is
on the top of the hill, Mahakali temple
and Bachra Mataji on the right and left to
the Kalika Mataji. During Mughal rule
another Syed Sadar Peer was also installed
there, but Kalika Mataji was the chief
temple. Hollies and Bills are the main
worshippers. On full moon of Chaitra
(April) and Dussehra (in the month of
October), large number of Hindus of all
classes gather there and worship Kalika
Mataji, Mahakali
etc……………………………..”

81. In view of the above discussions, the law as

noted above clearly establish that Court can take

into consideration the Gazetteers under the Evidence

Act, 1872, even though, the statement in Gazetteers

will not be treated as conclusive evidence but the

presumption of correctness of that statement is

attached to it. The admissibility of books and

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travelogues cannot be denied in view of Section 57.

Section 81 of the Evidence Act also contemplate for a

presumption of genuineness of every document

purporting to be any official Gazette or the

Government Gazette. Section

81 of the Evidence Act is as follows:-

“81. Presumption as to Gazettes,

newspapers, private Acts of Parliament and
other documents.—The Court shall presume
the genuineness of every document
purporting to be the London Gazette, or
any Official Gazette, or the Government
Gazette of any colony, dependency of
possession of the British Crown, or to be
a newspaper or journal, or to be a copy of
a private Act of Parliament of the United
Kingdom printed by the Queen’s Printer,
and of every document purporting to be a
document directed by any law to be kept by
any person, if such document is kept
substantially in the form required by law
and is produced from proper custody.”

82. Now, remains the next contention of Dr. Dhavan

that Gazetteers prior to 1858, when the sovereignty

of the area was not under direct control of British,

during the regime of East India Company, cannot be

relied. In the present case, the Gazetteers, which

have been relied are of the Gazetteers of Nineteenth

Century. The East India company by Charter from

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Queen Elizabeth on 31.12.1600 were permitted to trade

in the East Indies. The Company initially setup a

factory at Surat (State of Gujarat) in 1619. The

jurisdiction and power of East India Company were

enlarged by various charters issued by the Queen and

subsequently by enactments made by the British

Parliament. By 1805, several functions in Oudh area

were also entrusted to the East Indies Company

including establishment of Sudder Court in Oudh area.

East India Company, by beginning of Nineteenth

Century, was not only a trading company but had

statutory and governmental power as entrusted by

Charters and Acts of the British Parliament with

agreement of Nawab of Avadh in 1801. In any view of

the matter, the Gazetteers, which were prepared

during the regime of the East India Company in the

Nineteenth Century contains a record of public

history and they are clearly admissible under Section

57 of the Evidence Act. Therefore, there is no

substance in the submission of Dr. Dhavan that

Gazetteers prior to 1858 should not be looked into.

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83. During the relevant period, the first important

historical book, which contains the minutest details

of administration in the regime of the Akbar is A-

ini-Akbari, which was completed in Sixteenth Century.

The A-in-i-Akbari was work of Abul-Fazl Allami, who

was one of the Ministers in the Akbar’s Court. The

A-ini-Akbari was translated by H. Blochmann from

persian to English. Col. H.S. Jarrett translated

Vol. No.II. Shri Jadunath Sarkar, a Historian of

repute corrected and further annotated Vol.II

translated into English by Col. H.S. Jarrett. Shri

Jadunath Sarkar in his Editor’s introduction has

observed that Second volume was designated to serve

as a Gazetteer of the Mughal Empire under Akbar.

Jadunath Sarkar says that Third volume of the A-in-i-

Akbari was encyclopedia of the religion, philosophy

and sciences of the Hindus. The above was stated by

Jadunath Shankar in following words:-

“The third volume of the Ain-i-Akbari is an

encyclopedia of the religion, philosophy
and sciences of the Hindus, preceded by the
chronology and cosmography of the Muslims,
as required by literary convention, for
comparison with the Hindu ideas on the same
subjects. The second volume was designed
to serve as a Gazetteer of the Mughal

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Empire under Akbar. Its value lies in its

minute topographical descriptions and
statistics about numberless small places
and its survey of the Empire’s finances,
trade and industry, castes and tribes.”

84. In second volume of the A-in-i-Akbari details

have been given regarding "The Subah of Oudh", a

description of Awadh (Ayodhya) mentioned that Awadh

(Ayodhya) is one of the largest cities of India. The

description refers to Oudh as residence of Ramchandra

following is the description given at page 182

Vol.2:- “Awadh (Ajodhya) is one of the largest cities

of India. In is situated in

longitude 118o 6’, and latitude 27 o, 22.

It ancient times its populous site covered
an extent of 148 kos in length and 36 in
breadth, and it is esteemed one of the
holiest places of antiquity. Around the
environs of the city, they sift the earth
and gold is obtained. It was the residence
of Ramachandra who in the Treta age
combined in his own person both the
spiritual supremacy and the kingly office.”

85. Further Volume III, Chapter VI contains a heading

"The Eighteen Sciences”. The description refers to

Vedas and 18 Puranas and other religious texts. The

book also refers to Avatars (incarnation of the

Deity) in the following words:-

“Avataras
or
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Incarnations of the Deity

They believe that the Supreme Being in

the wisdom of His counsel, assumes an
elementary form of a special character for
the good of the creation, and many of the
wisest of the Hindus accept this doctrine.
Such a complete incarnation is called
Purnavatara, and that principle which in
some created forms is scintillant with the
rays of the divinity and bestows
extraordinary powers is called Ansavatara
or partial incarnation. These latter will
not be here considered.

Of the first kind they say that in the

whole four Yugas, ten manifestations will
take place, and that nine have up to the
present time appeared.”

86. The book have details of 9 avatars of Supreme

Being (Lord Vishnu) Ram Avatar or Ram incarnation has

also been mentioned in following words:-

“Ramavatara,
or
Rama-Incarnation.

They relate that Ravana one of the

Rakshasas two generations in descent from
Brahma, had ten heads and twenty hands. He
underwent austerities for a period of ten
thousand years in the Kailasa mountain and
devoted his heads, one after another in
this penance in the hope of obtaining the
sovereignty of the three worlds. The Deity
appeared to him and granted his prayer.
The gods were afflicted by his rule and as

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in the former instances, solicited his

dethronement which was vouchsafed, and
Rama was appointed to accomplish this end.
He was accordingly born during the Treta
Yuga on the ninth of the light half of the
month of Chaitra (March-April) in the city
of Ayodhya, of Kausalya wife of Raja
Dasaratha. At the first dawn of
intelligence, he acquired much learning
and withdrawing from all worldly pursuits,
set out journeying through wilds and gave
a fresh beauty to his life by visiting
holy shrines. He became lord of the earth
and slew Ravana. He ruled for eleven
thousand years and Introduced just laws of
administration.”
(Highlighted by us)

87. The A-in-i-Akbari is attestation of the faith and

beliefs held by Hindus in the period of Emperor

Akbar. Ayodhya was mentioned as residence of

Ramachandra, who was further described as Avatar,

i.e., incarnation of Vishnu. Specific statement has

been made that during the Treta Yuga on the ninth of

the light half of the month of Chaitra in the city of

Ayodhya, of Kausalya wife of Raja Dasaratha, Lord Ram

was born. The A-ini-Akbari unmistakeably refers

Ayodhya as one of the holiest places of antiquity.

The above statement in Ain-e-Akbari clearly indicate

that faith and belief of Hindus was that Ayodhya is a

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holiest place and birthplace of Lord Ram, the

incarnation of Vishnu, which belief was continuing

since before period of Akbar and still continues as

on date.

88. William Finch visited India from 1607 to 1611

A.D., his travel account has been published by

William Foster in his book "Early Travels in India".

89. William Finch mentioned about ruins of the

Ramachandra’s castle and houses. The travel accounts

also noticed the belief of Indians that Ramchandra

was born, who took flesh upon him.

90. Father Joseph Tieffenthaler visited India between

1766-1771 A.D. He wrote historical and geographical
description of India in latin. All the latin work
was translated in French. English translation of the
work was filed before the High Court as Ext. 133
(Suit-5) and has been extensively relied on. In the
description of the Province of Oudh, following is
stated:- “But a place especially famous is the one
called Sitha Rassoi i.e. the table of Sita, wife of
Ram, adjoining to the city in the South, and is
situated on a mud hill.

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Emperor Aurengzebe got the fortress called

Ramcot demolished and got a Muslim temple,
with triple domes, constructed at the same
place. Others say that it was constructed
by ‘Babor’. Fourteen black stone pillars
of 5 span high, which had existed at the
site of the fortress, are seen there.
Twelve of these pillars now support the
interior arcades of the mosque. Two (of
these 12) are placed at the entrance of
the cloister. The two others are part of
the tomb of some ‘Moor’. It is narrated
that these pillars, or rather this debris
of the pillars skillfully made, were
brought from the island of Lance or
Selendip (called Ceylan by the Europeans)
by Hanuman, King of Monkeys.

On the left is seen a square box raised 5

inches above the ground, with borders made
of lime, with a length of more than 5 ells
and a maximum width of about 4 ells. The
Hindus call it Bedi i.e. ‘the cradle’.
The reason for this is that once upon a
time, here was a house where Beschan was
born in the form of Ram. It is said that
his three brothers too were born here.
Subsequently, Aurengzebe or Babor,
according to others, got this place razed
in order to deny the noble people, the
opportunity of practicing their
superstitions. However, there still
exists some superstitious cult in some
place or other. For example, in the place
where the native house of Ram existed,
they go around 3 times and prostrate on
the floor. The two spots are surrounded
by a low wall constructed with
battlements. One enters the front hall
through a low semi-circular door.”

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91. The three important statements contained in the

account need to be noted:-

First, that Emperor Aurengzebe got the

fortress called Ramcot demolished and got a

Muslim temple, with triple domes, constructed at

the same place. It further states that fourteen

black stone pillars of 5 span high, which had

existed at the site of the fortress, are seen

there. Twelve of these pillars now support the

interior arcades of the mosque. Two (of these

12) are placed at the entrance of the cloister.

Second that, on the left is seen a square box

raised 5 inches above the ground, with borders

made of lime, with a length of more than 5 ells

and a maximum width of about 4 ells, which is

called Bedi (i.e. the “cradle”) by the Hindus.

The reason for the faith and belief was also that

there was a house where Beschan (Vishnu) was born

in the form of Ram.

Third, that Aurengzebe or Babar got this

place razed in order to deny the noble people,

the opportunity of practicing their

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superstitions. However, there still exists some

superstitious cult in some place or other. Since

in the place where the native house of Ram

existed, the Hindus go around 3 times and

prostrate on the floor.

92. The first Gazetteer relied is East India

Gazetteer of Walter Hamilton, first published in

1828. The Gazetteer contained particular

descriptions of the Empires, Kingdoms,

Principalities, provinces, cities, towns, districts,

fortresses, harbours, rivers and lakes of Hindostan.

93. The Gazetteer mentioned reputed site of temples

dedicated to Ram, Sita, Lakshman and Hanuman. The

Gazetteer further noticed that pilgrimage to Oudh are

chiefly of the Ramata sect, who walk round the

temples and Idols, bathe in the holy pools, and

perform the customary ceremonies.

94. The next Gazette relied is History, Antiquities,

Topography and Statistics of Eastern India (1838).

While noticing the history and topography of

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Gorukhpoor, Montgomery Martin mentioned about Ayodhya

and its glory.

95. A Gazetteer was published by Edward Thornton

“Gazetteer of India” (1854). In 1858, Edward

Thornton published another Gazetteer namely

“Gazetteer of the Territories under the Government of

the East Indies Company of the native States on the

Continent of India”, in which, a fairly large

description of Oudh is contained.

96. Reference of one more book which was filed as an

exhibit needs a reference. The book Hadith-e-Sehba

was written by Mirza Jaan in the year 1856. In the

book it was mentioned that the place of worship

called as birthplace of Lord Ram which was adjacent

to ‘Sita-KiRasoi’, the Mosque was constructed by

Babar in the year 923 Hijri. The translated copy of

the book as exhibit 17. The following extract from

the book is relevant to be noticed:-

“The above mentioned place is called seat

of father of Lord Rama. Places of Idol
worshiping situated here were demolished
and even a single piece of any Idol of
Hindu religion was left there un-
demolished. The place where was big temple

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of Hindu people, big Masjid was

constructed and the place where was small
temple of Hindu people, there small Masjid
was constructed. The place of worship is
called birthplace of Lord Rama and the
place which is adjacent to it, is called
"Sita Ki Rasoi" and Sita is called wife of
Lord Rama. At that place Babar Shah got
constructed a very big Masjid under the
supervision of Sayyad Musha Ashiqan in the
year 923 Hijri and its history is still
maintained. Today the above-mentioned
"Sita Ki Rasoi" is called the Masjid.”

97. The book is relevant since it was written in the

year 1856 which was the period of dissension between

Hindus and Muslims with regard to issue of Idol

worship at Ayodhya. The book candidly accepts that at

the janamsthan of Lord Ram, Mosque was constructed by

Babar.

Faith and belief of Hindus regarding Janma Asthan of

Lord Ram during the period 1858 to 1949.

98. During this period, there are several Gazetteers,

reports of A.S.I., books and other documentary

evidence, which have been exhibited in the Suits.

Apart from documentary evidence, a lot of oral

evidence has been led by the parties.

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99. At first, Firstly, notice may be had of the

Gazetteers published during the relevant period by

the Government. All Gazettes, which were published

during the relevant period were under the full

governmental authority since the British had directly

taken control over the area of Oudh w.e.f. 01.11.1958

by Government of India Act, 1858.

100. At this juncture notice may be taken of one more

relevant aspect, which is, that after the British

Government took over the area w.e.f. 01.11.1858, in

the official reports, correspondences and orders

issued by officers of British Government, the

“Mosque” was always referred to as “Mosque Janma

Sthan”, which clearly indicates that Government

officers at that time always treated the mosque as

situated at Janma Sthan. Sufficient materials

brought on record evidences the above aspect; which

may be referred to. Sheetal Dubey, Thanedar Oudh has

submitted a report on 01.12.1858, which is Ext. 21 of

Suit No.1, which report also refers to “Masjid” as

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“Masjid Janma Sthan”. Report dated 01.12.1858 is

already extracted.

101. Similarly in his report dated 06.12.1858,

Thanedar, Oudh, Sheetal Dubey, has again referred the

“Masjid” as “Masjid Janam Sthan”. An order was

passed on the application of Thanedar Sheetal Dubey

on 10.12.1858, in which order, “Masjid” was referred

as “Masjid Janam Sthan”. The said order is brought

on record is Ext. A-69 (Suit No.1), already

extracted. 102. Another important document, which

has been much relied by Dr. Rajeev Dhavan in his

submissions is Ext. A-14 (Suit-1), which is a copy of

the letter dated 25.08.1863 sent by the Secretary,

Chief Commissioner of Oudh to the Commissioner,

Faizabad Division, where “Mosque” was referred as

“Janam Sthan Mosque”. The letter has already been

extracted.

103. The above also clearly proves that even the

Government officers referred the Mosque as Janam

Sthan Mosque, which is fully corroborates the

statements in Gazetteers as noted and extracted above

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that Babri Mosque was constructed at the Janam Sthan

of Lord Ram.

104. The next work to be noticed is Historical Sketch

of Tehsil Fyzabad, Zilah Fyzabad, published by the

Government in 1870. The Historical Sketch was

prepared by P. Carnegy, Officiating Commissioner and

Settlement Officer of Ayodhya and Fyzabad. P.

Carnegy in his sketch states that Ayodhya is to Hindu

what Macca is to the Mohamedan and Jerusalem to the

Jews. P. Carnegy description has been extracted.

105. P. Carnegy has further referred to Janmasthan and

other temples and has categorically stated that at

the place of Janmasthan Emperor Babar built a Mosque,

which still bears his name in A.D. 1528.

106. P. Carnegy has also noticed under the heading

Hindu and Musalman differences about great rupture,

which took place between the Hindus and Mahomedans,

where Hindus were said to have taken control of

Janmasthan after fierce fight. It further noticed

that up to that time the Hindus and Mahomedans alike

used to worship in the Mosque-Temple and since

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British rule a railing has been put up to prevent the

dispute.

107. Another Gazetteer published in 1877 is Gazetteer

of the Province of Oudh. The Ayodhya has been

elaborately dealt in the Gazette. In above

Gazetteer, a description with regard to Janamasthan

and other temples, is mentioned as extracted.

108. Under heading “Babar’s Mosque” and “Hindu and

Musalman Differences”, the same contents have been

repeated under the Gazetteer, which I have already

extracted while noticing the Historical Sketch of

Tahsil Fyzabad, Zillah Fyzabad by P. Carnegy, which

are not being repeated for brevity.

109. In 1880, A.F. Millitt prepared his “Report on

Settlement of Land Revenue of the Faizabad” which is

extracted above.

110. Next to be noticed is Report of A.S.I. of North

West Provinces and Oudh, published in 1889, which

states that "The old temple of Ramachandra at

Janmasthanam must have been a very fine one, for many

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of its columns have been used by the Musalmans in the

construction of Babar's masjid, extracted earlier.

111. One more report published by Archaeological

Survey of India published in 1889 needs to be noted,

with heading “The Sharqi Architecture of Jaunpur;

with Notes on Zafarabad, Sahet-Mahet and other places

in the North-Western Provinces and Oudh” by A. Fuhrer

(extracted earlier).

112. The A.S.I., thus, clearly state that Babar’s

Masjid at Ayodhya was built on the very spot where

the old temple Janmasthan of Ramchandra was standing.

113. Another Report was published by A.S.I. on the

Monumental Antiquities and Inscriptions in the

NorthWestern Provinces and Oudh by A. Fuhrer.

Referring to Ramachandra, it mentioned that Lord Ram

was born there. The Report refers that Janmasthanam

Temple was demolished and a Masjid was constructed in

930 Hijri.

114. The next Gazetteer, which has been referred and

relied is Gazetteer of Fyzabad, Vol. XLIII published

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in 1905 by the Government of the United Provinces of

Agra and Oudh (extracted earlier).

115. In the “Imperial Gazetteer of India” published in

1908 with respect to Faizabad Division, extracted

earlier.

116. In 1928, publication of Faizabad, Gazetteer was

undertaken by H.R. Nevill, extracted earlier.

117. Archaeological Survey of India in volume “The

Monumental Antiquities and Inscriptions in the

NorthWestern Provinces and Oudh” in the year 1891

while describing Faizabad district, dealing city of

Ayodhya noted that in place of important Hindu temple

namely ‘Janmasthan’, a ‘Mosque’ was built during the

reign of Babur which still bears his name. It was

further mentioned that old temple must have been a

very fine one, for many of its column have been

utilised by the Musalmans in the construction of Babri

Masjid.

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118. The Gazetteer of “Bara Banki”, volume 48(1921),

of the District Gazetteers of the United

Provinces of Agra and Oudh mentioned about a

dispute which took place in the year 1853

between Hindu priests and Musalmans of Ayodhya

with regard to the ground on which formerly

stood the Janmasthan temple, which was destroyed

by Babar and replaced by a Mosque. Following has

been stated at page 169 of the Gazette under the

heading 'History' in chapter 5:-

“...It would appear that the event

happened in the year 1853. The cause of
the occurrence was one of the numerous
disputes that have sprung up from time to
time between Hindu Priests and the
Musalmans of Ajodhya with regard to the
ground on which formerly stood the
Janamsthan temple, which was destroyed by
Babar and replaced by a mosque. Other
mosques had been built there by Aurangzeb
and others and some of them had fallen
into decay. The ground, being peculiarly
sacred to the Hindus, was at once seized
by the Bairagis and others, thus affording
a fertile source of
friction...”

119. The Gazetteer has further narrated details of a

march by Amir Ali under whom large number of

Muslims marched towards Ayodhya but were

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intercepted by Colonel Barlow of First Regiment

of Oudh in which large number of persons were

slained and first infantry was almost destroyed.

The Gazetteer reports that Amir Ali was also

killed. In February 1856, the kingdom of Oudh

was annexed by British government.

120. Apart from Gazetteers and books as referred

above, there are other documentary evidences

brought on record by the parties of the suits in

question. Reference can be made to certain

exhibits, certified copies obtained from public

record which are submitted in the suit. An

Application dated 28.11.1858 by Sheetal Dubey,

Thanedaar Oudh is filed as exhibit-19 in the

Suit No. 1, extracted earlier.

121. Next documentary evidence brought on record is

an application dated 30.11.1858 submitted by

Syed Mohammed

Khatib Moazzim Masjid Babri Sites in Oudh. In the

complaint submitted by Mohammed Khatib Moazzim of the

Babri Mosque, it was mentioned that a Nihang Singh is

creating a riot at janamsthan Masjid situated in

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Oudh. Complaint mentioned that near mehrab and

mimber, he has constructed an earth chabutra inside

the Mosque, 'Puja' and 'Home' is continuing there and

in whole of Masjid, "Ram Ram" is written. The request

in the complaint was to oust the Hindus from the

Mosque (extracted earlier).

122. Another document filed as exhibit 21 dated

31.12.1828 which is the report submitted by

Sheetal Dubey, Thanedar, Oudh. In the report,

Sheetal Dubey has referred the ‘Mosque’ as

'Mosque Janmasthan' (extracted earlier).

123. Next exhibit relied is exhibit 31 of Suit No.1

which is an application filed by Mir Rajjabali

khatib Masjid for removal of Chabutra which was

built in the Mosque(extracted earlier).

124. The above Application itself is an evidence of

Chabutra of Hindus in the premise of Mosque and

puja being performed by blowing conch.

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125. Another application was made by one Mohammed

Asghar on 12th February 1861 seeking removal of

Chabutra and hut of the Hindus from the Mosque

premises. The application was filed as exhibit

54 in suit 4.

126. The application was given on behalf of Mohammed

Asghar, Mir Rajjab Ali and muhammed Afzal,

Khateeb and

Muezzin of Babri Masjid situated at Janmasthan,

Ayodhya. The application dated 12th March 1861 is

extracted earlier.

127. One important fact which may be noted from the

above application and some earlier applications

which were made on behalf of khateeb and muezzin

of Babri Mosque is that description of Babri

Mosque is always mentioned as "Babri Masjid

situated at Janmasthan, Ayodhya".

128. Exhibit A-55 filed in Suit No. 4 is report of

Khem Singh subedar dated 16.03.1861 regarding

demolition of Kutiya of Inkani Singh.

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129. Exhibit A-30 filed in Suit No. 4, application

dated 25.09.1866 submitted by muhammed Afzal

complaint mentioned that Tulsidas etc. Bairagis

had placed an Idol inside the premises in 3

hours. Public complaint was made (extracted

earlier).

130. Evidence has been brought on the record to the

fact that Deputy Commissioner, Ayodhya by an

order dated 03.04.1877 has granted permission to

Khem Das, Mahant, janamsthan to open the door in

the Northern wall in the premises of Mosque. An

appeal was filed by Syed mohammed Asghar against

the said order. Grounds of the appeal have been

brought on the record as exhibit 30 in Suit No.

1. The appeal also noticed that Idols on the

premises have not yet been removed. The appeal

also admits small Chulha in the premises. Ground

6 of the appeal(exhibit-30) is as follows:-

“Section 6. That there has been old

controversy between the respondent and the
appellant and the Hon'ble Court has
ordered that the respondent should not do
anything new on that place. But because of
Baldeo Dass bairagis being underground,

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the order dated November 7, 1873 would not

be served upon him. That is to say, idol
has not yet been removed as per orders.
The respondent with the intention of
occupying it continues to indulge in
several activities on the wall and on
being restraint by someone, he becomes
aggressive and is bent upon to fight with
him. So he has made a chulha within the
said compound which has never been done
before. In the past, there was near a
small chulha(kitchen) for Puja which he
has got extended.“

131. In the above appeal, report of Deputy

Commissioner, Faizabad was submitted. In the

report, Deputy Commissioner mentioned that

opening of the door was necessary to give a

separate route on fair days to the visitors to

the Janmasthan.

132. The above report by Deputy Commissioner clearly

proves that Hindus were visiting the janamsthan

which was within the Mosque premises. The

Commissioner had ultimately dismissed the appeal

of Muhammed Asghar on 13.04.1877.

133. Another important fact to be noticed is filing

of suit by Mahant Raghubar Das being case number

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61 of 280 of 1885 before sub-judge Faizabad

where plaintiff has sought permission to

construct a temple on Chabutra existing inside

the Mosque premises. The permission to construct

the temple was denied by dismissing the suit on

24.12.1885. An appeal was filed by Mahant

Raghubar Das before District Judge Faizabad. The

District judge dismissed the appeal on

18.12.1886.

134. The second appeal against the said judgement was

dismissed by Judicial Commissioner, Oudh.

135. There is further evidence which have been

brought on record to prove that in the year 1934

there was Hindu Muslim riot in Ayodhya in which

riot the Dome of Babri Mosque was damaged by

Hindus which was got constructed by

Administration through a Muslim contractor.

Documents pertaining to repair of the Mosque by

a Muslim contractor, application for payment of

his bills have been brought on the record by

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plaintiff of Suit No. 4 which are testimony of

differences and dispute between the parties

which took place in 1934 damaging the Mosque

which could be repaired after several months.

The documentary evidence referred above amply

proves that within the premises of Mosque which

premises is bounded by boundary wall the Hindus

were visiting and worshipping in the period in

question. The application submitted by Khateeb

and muezzin of Babri Mosque as noted above

clearly admits the worship and Puja by the

Hindus, construction of Chabutra by the Hindus,

putting the Idols by the Hindus in the Mosque

premises. The reference of Babri Mosque as

janamsthan Masjid in several application also

indicates that Mosque was situated at the

janamsthan of Lord Ram. The above documentary

evidence are testimonial of faith and belief of

the Hindus that the Mosque was on the janamsthan

of Lord Ram. Their protest, persistence and

actions to worship within the

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Mosque is testimony of their continued faith and

belief that premises of the Mosque is Janmasthan of

Lord Ram.

ORAL EVIDENCES:-

136. The parties led substantial amount of the oral

evidence in the suits. Plaintiff of Suit No. 4

produced 32 witnesses which are descibed as

PWs. Plaintiff of Suit No.5 produced 19

witnesses which are descibed as OPWs. Plaintiff

of Suit No.3 also produced 20 witnesses who are

descibed as DWs. In Suit No.4, defendant No.

2/1 produced 3 witnesses. Other defendants in

Suit No.4 have also produced certain witnesses.

137. The oral evidences of the witnesses need to be

examined with regard to the aspect of faith and

belief of Hindus about the Janmasthan of Ram

Janma Bhumi as well as evidene of worship and

Puja there at. 327. Mahant Paramhans Ramchandra

Das OPW-1, aged about 90 years (as on

23.12.1999), was examined by plaintiff of suit

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No.5. Mahant Ram chander Das is resident of

Panch Ramanandi Akhil Bharti Anni and Digambar

Akhara, Ayodhya. He came to Ayodhya at the age

of 14-15 years.

In his examination in chief, Mahant Paramhans Ram

Chander Das states:-

“...Since the time I came to Ayodhya, I

have always seen people going for
Darshan(glimpse) at seven places at Ram
Janambhumi, Hanuman Garhi,Nageshwarnath,
Saryu, Chhoti Devkali, Badi Devkali,
Laxman Ghat, Sapt Sagar situated near
Chhoti Devkali and kanak Bhawan temple.
The seven places are unchangeable and
their location cannot be changed, which
means that one place cannot be built at
the place of other one. Mani Parvat is a
famous place, bit is different from the
seven places. There was an idol of Lord
Ram at Ram Janam Bhoomi. There was Sita's
kitchen also. As per customs there was a
special hall by the name of Ram Janam
Bhoomi and on all the pictures and statues
of many Gods and Goddesses here engraved
their own. Apart from statues. That place
was also worshipped, which was said to be
the birthplace of Lord Ram and where the
Lord Ram has appeared. There was a
platform also, known as the platform
(chabutra) of Ram Lala and a hut of
straws, in which priests of Nirmohi Akhada
used to do worship and offer food,etc. To
the deity of Lord Ram... ”

138. In his cross examination he states:-

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““...The place, which i describe as 'Garbh

Griha', is according to my belief and
according to the belief of all Hindus,
birthplace of Ramchandra ji. I consider
that place, where on 23rd December 1949
idol was installed after removing it from
the chabutra, as birth place and I used to
consider that place as birth place before
the installation of Idol there.

Question:- Can that place, which you

described as birthplace
according to your belief, be
10-15 hands away on either
side of the middle dome place?

Answer:- No. The place where the order

is placed, authentic place
and the whole Hindu
community believes in that
very place. There is no scope
of any doubt. There cannot be
a distance of even two-four
feet find the location of this
place.

The basis of this belief is

that Hindus have been having
Darshan of this place as
janambhoomi Since
centuries...” ”

139. Next statement to be noticed is of OPW-4, Shri

Harihar Prasad Tiwari. He was aged 85 years(as on

01.08.2002). He claims to have lived in Ayodhya from

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1934 to 1938 at Ram Niwas Mandir which was only

250300 steps from Ram Janma Bhumi. He has referred to

faith and belief of people that Bhagwan Vishnu has

incarnated as Bhagwan Shri Ram at that very place. In

para 3 of his examination-in-chief, he states:-

““3. Ayodhya is an ancient and The holiest

Pilgrimage for Hindus where Parambharma
Parmeshwar Bhagwan Vishnu incarnated as
Shri Ram, son of king Dashratha. The
followers of Hinduism have the faith from
the time immemorial that bhagwan Vishnu
incarnated at Ayodhya as Lord Shri Ram.
This place is adorable. Owing to this
trust and faith people used to visit for
Darshan and Parikrama(taking round) of
Shri Ram Janm Bhoomi. My family members,
my grandfather and elderly people, saints
and hermits of Ayodhya, during my study
there from 1934 to 1938, used to say that
Bhagwan Vishnu had incarnated as Bhagwan
Shri Ram at this very place and this is
Shri Ram Janam Bhoomi. Based on this faith
and belief I have been going to Shri Ram
Janam Bhoomi for Darshan. After completing
my study, whenever I came to Ayodhya I
used to go there for Darshan invariably. I
mostly live in Sugreev Quila, ram kot,
ayodhya for about last 8-9 years and
usually go to the Ram Janmabhoomi for
having Darshan. ””

140. Further in his cross examination he states: -

“6....... The building having domEs was

the holy sanctum sanctorum, where, it is
believed that bhagwan Shri Ram had taken

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birth. Hindu pilgrims and Darshanarthies

(viewers) you used to offer fruits,
flowers and money there also, owing to
their faith....... ”

141. Reiterating his faith in Ram Janam Bhumi in

cross examination he further states: -

“... It is right that in my above

statement 1 had stated that the disputed
site is the Janam Bhoomi of Ram. This
faith of mine is not by reading any
religious book but is based on what I have
heard from old and aged persons. I am
having this faith well before I came to
Ayodhya. That is to say when I gained
consciousness I have such faith and this
was by hearing from the people. In between
1934 to 38 when I was at Ayodhya, possibly
I would have gone to the janambhumi i.e.
the disputed site thousands of times.
During my studies I used to go to the
Janam Bhoomi... ”

142. He in his statement also stated that there was

Parikrama marg outside the west side wall of

the disputed building and he used to do

Parikrama.

“....Outside the west side wall of the

disputed building there was a Parikrama
Marg(route) close to the wall and walking
on this route I used to perform
Parikrama(religious round). This route was
made walk able and some old brick were
laid on it.....”

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143. In his statement he also stated that he used to

perform Parikrama through the Parikrama Marg.

144. Next statement to be noticed is the statement

of OPW-5 Ram Nath Mishra who was aged 91

years(as on 06.08.2006). He claimed to have

come to Ayodhya in the Baisakh month of 1932.

He used to work as “Teerth Purohit”. In his

cross-examination he states:-

“.... According to elderly people, it was

under the central dome the Lord Rama was
born as the son of king Dashrath. It was
on the basis of this faith and belief that
I and all the Hindu devotees of Lord Rama
used to have the darshan of Shri Ram Janam
Bhoomi. It was considered to be sacrosanct
place and a place worth worshipping.....”

145. He further states: -

“... All the Hindus have this old

traditional belief that Lord Vishnu was
born as the son of king Dashrath at this
place only and that is why this place is
so sacred and worthy of worship. It is on
the basis of this faith and belief that
lakhs of pilgrims have been coming to
Ayodhya for the ‘Darshan’ and ‘Parikrama’
of Lord Rama's birth place and continue to
do it till date. There is a stone of the
times of the Britishers outside the main
entry gate, on which is written
'Janambhoomi Nitya
Yatra' and the digit one of

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Hindi('ek')...... “

146. OPW-6, Housila Prasad Tripathi aged 80 years(as

on 13.08.2002) claims to have come to Ayodhya

in December 1935. In his examination-in-chief,

he states:- “7. We have this faith and believe

that lord Shri Ram was born at Ayodhya and that

place is famous as Shri Ram Janam Bhoomi where

people in lakhs come from every nook and corner

of the country and after having Darshan shri

Ram Janmabhoomi do its Parikrama. It is on the

basis of this faith and believe that we also

come to Shri Ram janam bhumi three to four

times a year and make it a point to have

darshan of Shri Ram janam bhoomi and then have

its Parikrama.

8. I am also of the firm faith and

believe that Lord Shri Ram was born at the
same very place at Ayodhya where thousands
of Hindu pilgrims come for Darshan and
Parikrama. It was on the basis of this
belief that since 1935, I also went to
Ayodhya three to four times every year and
after a bath in the Saryu river had
darshans of Kanak bhawan, Hanumangarhi and
of Shri Ram Janam Bhoomi and had the
Parikrama of Shri Ram Janam Bhoomi."”

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147. He further states:-

“10.....There was a building of 3 shikhars

to the west of the wall with iron-bars in
which the place of the central Shikhar
portion is Shri Ram Janmabhoomi which is
called Sanctum-Sanctorum, according to
Hindu tradition, faith and belief. On the
basis of this faith and belief, I also
used to go for Darshan and Parikrama of
the Shri Ram Janam Bhoomi."

148. Further he states: -

“12. All the pilgrims - darshnarthees

would enter the Sri Ram Janam Bhoomi
premises from the entry gate to the east
and have darshans of the idols placed at
Ram chabootra, of the idols placed under
the neem and peepal tree located to its
southeast corner and Sita Rasoi and the
foot prints etc., there and also have
darshan of the sacosanct Sri Ram Janam
Bhoomi located inside the barred wall
which is considered to be the Sanctum-
Sanactorum. The pilgrims and those coming
for darshans and we used to make offerings
like fruit and cash according to our
shardha. At the SanctumSanctorum also, the
pilgrims and we after the darshan of this
used to make offerings through the barred
wall as per our belief.”

149. In his cross-examination, he denied the fact

that public opinion regarding Ram Janam Bhumi

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is of twentieth century. He states it to be

since long as per tradition.

“...However, the public opinion is that

the birth place of Ramji is the same i.e.
Ram Janam Bhoomi about which a dispute is
going on. It is wrong to say that this
public opinion is of the twentieth
century. As a matter of fact, it has been
there since long as per tradition...”

150. OPW-7, Ram Surat Tiwari, 73 years of age(as on

19.09.2002), claims to have gone to Ayodhya for

the first time in the year 1932 and thereafter

has been going regularly. In his examination-

in-chief, he states: -

“.....My elder brother told me that

this was the birth place of Lord
rama (this is Ram Janam Bhoomi) and
from the very ancient times Hindus
have trust, confidence and a popular
faith that Lord Vishnu had
incarnated in the name of Shri Ram
son of Raja Dashrath below the
middle dome and this is why it has
been called ‘garbh griha’. After
having the darshan of Ram Chabootra,
the pilgrims and visitors used to go
through doors of lattice wall to the
three domed building and from there
they got the darshan of ‘Garbh
Griha’ and they offered flowers,
prasad and coins towards the ‘Garbh
Griha’.

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151. He further stated in his cross-examination

about his faith and belief regarding Ram Janam

Bhumi in following words:-

“so far as 3-dome building is concerned, I

had a faith which I maintained even today
that it was the janam bhoomi of Ram Ji.”

152. Further in his cross-examination, he stated

that he after offering flowers and prasad

prostated himself on the ground below the dome

from outside.

“...Before reaching the eastern gate, my

brother from outside the wall fitted with
iron bars offered flowers at the building
with three domes and gave it to me also
which I also offered. I offered the
flowers through the iron bars from outside
only. At the time when I offered flowers,
prasad and money offered by others were
also lying there. I prostrated myself on
the ground below the dome from outside
only. I had asked my brother why was he
offering flowers at that place, on which
he told that Lord Rama was born at the
place under the middle dome of this
building. The place which I had visited
was the one below the middle dome...”

153. OPW-12, Sri Kaushal Kishore Mishra, aged 75

years(as on 16.12.2002) stated to have perform

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worship in Ram Janam Bhumi at the age of 14-15

years. In his examination-in-chief he states:-

“6. When I started to go to Ram Janam

Bhoomi with my grandfather and father, I
noticed that the pilgrims, devotees etc,
who came to Ayodhya, used to visit Shri
Ram Janam Bhoomi without fail. During the
main festivals the gathering was very
high, say more than lakhs and they used to
worship and visit Ram Chabootra, Sita
Rasoi, Shiv Chabootra and Sanctum-
Sanactorum(where Lord Ram was born) below
the middle dome of three domed building
and make round of the premises (Parikrama)
outside the walls only.”

154. He futher states: -

“12. I had been told by my grandfather and

father that according to the faith and
belief of Hindus since time immemorial,
Lord Ram was born as a son of King
Dashrath in Treta Era in this Sanctum-
Sanactorum situated under the building
having three domes. This is the
traditional belief and firm faith which
makes the people of this country and the
numerous pilgrims from outside to visit
this birth place of Lord Shri Ram to pray
and do parikrama of this place.”

155. In his cross-examination, he maintain “it is by

belief that he got his birth at the place where

Babri

Masjid was established.”

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156. Next witness OPW-13, Narad Saran, age 76

years(as on 27.01.2003) claims to have come to

Ayodhya with a desire to become a Sadhu. In

his examination-in-chief, he states:-

“When entering through the eastern gate

there was a building with three domes
west, just below the middle dome, there
was sanctum-sanctorum which was
worshipped. My preceptor had told me about
this place that it was always the most
worshipped as the birth place of Lord Ram
since time immemorial. I have also
worshipped this place and found that it
was thronged by thousands of pilgrims who
paid their obeisance to this holy shrine.
They also visited and worshipped Sita
Kitchen, Ram chabutara etc., and made a
full round of the entire premises after
coming out of
Hanumatdwar.”

157. In his cross-examination he states:-

“...Ayodhya is the Janam bhoomi of Lord Ram and
we take the place below middle dome of
the disputed structure as his Janamsthan.
Janamsthan and Janambhoomi have the same
meaning....”

158. DW-3/14, Jagad Guru Ramanand Acharya Swami

Haryacharya, aged 69 years(as on 23.07.2004)

stated in his cross-examination:-

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“...I used to go to three domes Bhawan for

darshan, earlier. I have also taken the
darshan of Shri Ram Lalla. I took darshan
because I believe that one could get
salvation by doing the darshan...”

159. DW-3/1, Mahant Bhaskar Das, aged 75 years(as on

29.08.2003). In his examination-in-chief, he states:

-

“..During my tenure from 1946 to 1949 till

the date of attachment no Muslim ever
visited the disputed site to offer Namaz
and no Namaz was recited there. Hindu
devotees used to offer money, sweets,
fruits and other items to the deities
seated within and out of the disputed site
which were received by the Nirmohi Akhara
through the priest..”

160. The witnesses who were examined by plaintiffs

of Suit No.4 also in their statement have

admitted that what they call ‘Babri Masjid’ is

called by Hindus as ‘Janmasthan’.

161. Mohd. Hashim who appeared as PW-1 was aged 75

years(as on 24.07.1996). In his cross-

examination he admits that the place which was

attached on 22nd/ 23rd December, 1949 is called

Ram Janam Bhumi by Hindus and Babri Masjid by

Muslims.

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“...The place which was attached on

22nd/23rd December, 1949 is called Ram
janambhoomi by Hindus and Babri Masjid by
Muslims. In the suit of Gopal Singh
visharad also it has been called Ram Janam
Bhoomi by Hindus and Babri Masjid by
Muslims....”

162. He further states that “as Mecca is important

for

Muslims so is Ayodhya for Hindus due to Lord Ram.”

163. PW-2 Haji Mehboob Ahmed aged 58 years, resident

of Tedhi Bazar, Ayodhya, states in his

crossexamination:-

“...The grilled wall adjoined the wall of

the mosque to the south. We call it a
Masjid and the other party calls it a
Mandir. The height of the entire boundary
was the same. This was a fully constructed
building to the west of the courtyard.
This was a mosque to which others called a
Mandir...”

164. Mohd. Yaseen PW-4, aged 66 years (as on

07.10.1996) also states following: -

“...I live in Ayodhya, so I often meet
some Hindus and Priests also. We also meet
them in marriage ceremonies. They believe
that this is the birth place of Lord Rama.
(Then said they have their own faith).
Hindus consider it a sacred place and
worship here...”

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165. PW-23, Mohd. Qasim, aged 74 years, admits in

his cross-examination that what he call ‘Babri

Masjid’ is called ‘Janamsthan by Hindus’. He

states : “after that there is Babri Masjid on

its one side. It is true that the place I call

‘Babri Masjid’ is called ‘Janamsthan’ by

Hindus.”

166. The oral evidence as noticed above of the

witnesses examined on behalf of plaintiffs of

Suit No.5, plaintiffs of Suit No.3 and even

witness examined on behalf of plaintiffs of

Suit No.4 clearly proves faith and belief of

Hindus that Janmasthan of Lord Ram is the place

where Babri Mosque has been constructed. Three-

dome structure was treated as Birthplace of

Lord Ram. People worship of the three-dome

structure, parikrama of the entire premises by

the devotees have been amply proved by oral

evidences led in the Suit. 167. The statements

noted in all Gazetteers as noticed above

published under authority of government

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categorically and unanimously state that at

Janmasthan of Lord Ram, Babri Mosque was

constructed in 1528 by Babar. It is true that

statements recorded in Gazette is not

conclusive evidence but presumption of

correctness of statements recorded have to be

raised subject to being disproved by leading

appropriate evidences. All Gazettes published

by the Government authority repeats the same

statement that Babri Mosque was constructed at

the Janmasthan of Lord Ram. There is no

evidence worth name led of the plaintiffs of

Suit No.4 to disprove the above statement and

further, oral evidence as noticed above clearly

supports the faith and belief of Hindus that

Lord Ram was born at the place where Babri

Mosque has been constructed. The conclusion

that place of birth of Lord Ram is the

threedome structure can, therefore, be reached.

168. Dr. Rajeev Dhawan, learned senior counsel submits

that although in oral statements it was stated by the

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witnesses that birthplace of Lord Ram is below the

middle dome but infact Ram Chabutra which was outside

the three-dome structure on the left side in outer

courtyard was the birthplace of Lord Ram. He submits

that in the judgment of the suit filed in 1885 by

Mahant Raghubar Das also the Janmasthan was treated

to be Ram Chabutra.

169. The sequence of the events as noticed above

clearly indicate that faith and belief of Hindus was

that birth place of Lord Ram was in the three-dome

structure Mosque which was constructed at the

janamasthan. It was only during the British period

that grilled wall was constructed dividing the walled

premises of the Mosque into inner courtyard and outer

courtyard. Grilled iron wall was constructed to keep

Hindus outside the grilled iron wall in the outer

courtyard. In view of the construction of the iron

wall, the worship and puja started in Ram Chabutra in

the outer courtyard. Suit of 1885 was filed seeking

permission to construct temple on the said Chabutra

where worship was permitted by the British Authority.

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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.

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