M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Dispute

Saji Koduvath, Advocate, Kottayam.

Ayodhya dispute: All parties submit final notes, Hindus don't want land to be divided

Introduction

Lord Rama is one of the widely worshipped Hindu deities. Rama has been venerated as personification of all goodness in life. Rama, the ideal man and ideal king, is believed to be born in Ayodhya in the ‘Treta yuga’.  (It was the 2nd of the four yugas (Krita, Treta, Dwapara, and Kali). Treta Yuga lasted for 12,96,000 years.  Dwapara yuga lasted for 864,000 years. Present yuga, Kali, began in 3,102 BC and will last 4,32,000 years.)

Babri Masjid (Babur’s Mosque) is assumed to be constructed in 1528 by Mir Baqi, one of the generals of Babur. Babur was the first Mughal emperor and the founder of the Mughal empire in India.

Brief History of Disputes

Emergence of Ayodhya Disputes: During 1857, both the Hindus and Muslims worshipped in the same compound where the mosque stood. Muslims worshipped inside the mosque and Hindus outside. The compound was having the area of 2.77 acres. Hindus raised disputes on the belief that the Janamsthan (birthplace) of Rama is where the mosque stood. There being clashes, in 1857, a British administrator erected a railing within the area of 2.77 acres to separate the two groups. 

Mosque Was ‘Desecrated’ By a Group: 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.

Allahabad High Court Judgement: The civil disputes triggered in 1950 took a long journey before its culmination in the Supreme Court decision in 2019 under the caption M Siddiq Vs. Mahant Suresh Das (2020-1 SCC 1). By the time, on December 6, 1992, the Babri Masjid, had been destroyed.

Three judges of the Allahabad High Court had decreed the suits, in 2010, directing to divide the 2.77 acre disputed land equally between the three parties – Ram Lalla Virajman, Nirmohi Akharaand Uttar Pradesh Sunni Central Waqf Board.

Suits Considered in M Siddiq Vs. Mahant Suresh Das

  • Suit No. 1 considered in M Siddiq Vs. Mahant Suresh Das (2020-1 SCC 1) was the suit instituted on 13 January 1950 by Gopal Singh Visharad, a resident of Ayodhya in his capacity as a follower of Sanatan Dharmseeking for:
    • (i) A declaration of his entitlement to worship and seek the darshan of Lord Rama, according to religion and custom at the Janambhumi 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. This suit was filed for a right in common with and for the benefit of the other Hindu devotees.
  • Suit No. 2 was filed on 5 December 1950 by Paramhans Ramchandra Das before the Civil Judge, Faizabad seeking reliefs similar to those in Suit 1. Suit 2 was subsequently withdrawn on 18 September 1990.
  • Suit No. 3 was instituted on 17 December 1959 by Nirmohi Akhara,claiming shebaitship rights, 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.
  • Suit No. 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 ABCD 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 EFGH 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 ScheduleAof the Plaint by removing the unauthorized structures erected thereon.
  • Suit No. 5 was instituted on 1 July 1989 in the name of Bhagwan Sri Ram Virajman at Sri Ram Janmabhumi, Ayodhya also called Bhagwan Sri Ram Lalla Virajman as 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 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; (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. Following reliefs were claimed in this suit:
    • (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.

The Judgment

Appeal was filed before the Supreme Court against the verdict of the Allahabad High Court. The five-judge bench of the Apex Court heard the title-dispute cases, and passed the Judgment (M Siddiq Vs. Mahant Suresh Das).

The Judgment in M Siddiq Vs. Mahant Suresh Das  (2020-1 SCC 1) was delivered on November 9, 2019. The Constitution Bench comprising the Chief Justice Ranjan Gogoi, Justices SA Bobde, DY Chandrachud, Ashok Bhusan and Abdul Nazeer were unanimous in their verdict. And, the judgment was per curiam also, i.e., a collective one without specifying the author or authors.

There was an ‘addenda’ authored by one of the judges (undisclosed) recording his reasons on the issue of ‘whether the disputed structure was the birth place of Lord Ram, as per the faith and belief of the Hindus’.

Rights of ‘Next Friend’ to File Suits for Protection of Trust Properties

The possession and management of the property of a temple or Idol, with the right to sue, are vested in the Shebait. But, where 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.

A suit by worshippers 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.

Under Sec. 92, CPC, 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.

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.

Locus standi of worshipper to question affairs of a temple

In this case, with respect to the locus standi, our Apex Court considered the following questions:

  • Can a worshipper institute a suit?
  • If so, in what circumstance?
  • Can it be in his personal capacity?
  • What are the reliefs entitled to by the worshipper?
  • Should idol be a necessary party in such a suit?
  • Should Shebait be a necessary party in such a suit?
  • Should there be a court-appointment as ‘next friend’ of deity?

The legal position handed-down by the Supreme Court can be summarised as under:

  • (i) A worshipper can file a suit for enforcing individual rights (like access to the idol or worship) in a personal capacity. Such an ordinary suit can be filed in his own name without being obliged to bring a suit in the name of the idol. The relief may be against the Shebait. The deity is not bound by the suit of the worshippers unless the remedy provided is in rem in nature.
  • (ii) If the suit for enforcing individual rights is actually to protect the deity’s interests, such a suit can be filed by a worshipper only ‘on behalf of the deity’.
  • (iii) When a Shebait is negligent in its duties or takes actions that are hostile to the deity or improperly alienated trust property or refuses to act for the benefit of the idol or where the Shebait’s actions are prejudicial to the interest of the idol, it becomes necessary to confer on a next friend the right to bring an action in law against the Shebait; and a worshipper has an ad hoc power of representation to protect the interest of the idol.
  • (iv) No decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But a mere declaratory decree that the alienation is not binding on the deity can be granted.
  • (v) The worshippers, out of their own independent action, cannot exercise the deity’s power of suing to protect its own interests, like taking action against a Shebait who acts adverse to the interests of the deity, or for recovery of possession of the property improperly alienated by the Shebait.
  • (vi) In such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.
  • (vii) The next friend being so allowed, steps into the shoes of the Shebait for the limited purpose of the litigation. Or, the next friend, the worshipper, directly exercises the deity’s right to sue.
  • (viii) 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.
  • (ix) The court can craft any number of reliefs, including the framing of a scheme. The question of relief is fundamentally contextual and must be framed by the court in light of the parties before it and the circumstances of each case.
  • (x) To protect against the threat of a wayward ‘next friend’, the court has to satisfy, in some manner, that the next friend is bona fide and that he can satisfactorily represent the deity.
  • (xi) 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. 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 legal duties.
  • (xii) In an appropriate case, the court can scrutinise the intentions and capabilities of the next friend, of its own accord. 

An Appointment of Next Friend Under Order XXXII, CPC Not Necessary

It was made clear in the judgment that ‘the worshipper must be permitted to sue as next friend’. It is not specifically stated that the permission must have been obtained as provided under Order XXXII, CPC (Suits by or against Minors). But, it appears that a ‘scrutiny’ is warranted only ‘if the next friend’s bona fides are contested’. It is held as under:

  • “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.”

Findings: Limitation

  • The Suit No.1, was maintainable since it was filed by a devotee (Gopal Singh Visharad) not for the assertion of any private right, but for a right in common with and for the benefit of the other Hindu devotees.
  • The Suit No. 3, filed by Nirmohi Akhara claiming shebaitship rights, was found to be not maintainable. The cause of action for Suit No. 3had been arisen in January 1950, when the receiver took custody of the disputed structure. But, the suit was filed only in December 1959, more than 9 years after the cause of action had arisen. Akhara claimed that it was within the limitation as it was a suit for possession and the limitation period thereof was 12 years. Court rejected Akhara’s argument observing that the suit was filed against the order of the Magistrate passed under Section 145 of Code of Criminal Procedure, 1898. It was a suit for restoration of management and charge, and not one for possession. The applicable limitation period for the suit was 6 years (residuary provision) and not 12 years as claimed by the Akhara.
  • The Court also rejected Akhara’s argument that the action of the Magistrate amounted to a ‘continuous wrong’ and therefore the limitation period continued to reset. It noted that it was ‘inherently fallacious’ to argue that the order of a Magistrate would give rise to a wrong, let alone a continuous wrong.
  • The Suit No.4, filed by the Sunni Waqf Board, the Apex Court found that it was one for possession falling under Article 142 with a limitation period of 12 years; and thus the suit was held to be within limitation period.  
  • Suit No. 5 was filed by Plaintiff No. 3 as the ‘next friend’ of the Plaintiff No.1, the deity. Although it was only filed in 1989, the Court held it to be within the limitation period for: (i) the deity was not impleaded in any of the earlier suits, and (ii) the interests of the Plaintiff No.1 were not being protected by Nirmohi Akhara which was pursuing its own personal interest in suit 3.

Nirmohi Akhara did not enjoy Shebaitship

Court observed that Nirmohi Akhara, who filed Suit No. 3 claiming to be the de facto shebait, had no locus standi to file the suit. Akhara did not demonstrate continuous management of the idols in the outer courtyard. The Akhara lacked de facto shebaitship, even though the next friend in suit 5 never had historically disputed the Akhara’s shebaitship. Relying on Gopal Krishnaji Ketkar  [AIR 1954 SC 5]), it was held that the ‘next friend’ in suit 5 did not have to demonstrate that the Nirmohi Akhara was guilty of “misconduct”.

Nirmohi Akhara did not always act in the interests of the deity. It failed to prove de facto shebaitship. There was no deed to entrust it with management of the deity. Therefore, ‘next friend’ in suit 5 could sue on behalf of the deity. The Court reliedon Sankaranarayanan Iyer: AIR 1949 Mad 721.

Findings on Title and Possession

The Apex Court found that the disputed land (Ram Janmabhoomi) is not a ‘juristic person’. Thereon it proceeded to consider the contentions of both sides on title and possession of the disputed land. The Supreme Court determined title with the deity, Shri Ram Virajman.The Court rejected the claim of Sunni Waqf Board on ‘presumed dedication’ and ‘waqf by user; and also the alternative contention on adverse possession. Injunction was issued against the other parties from interfering in the construction of a new temple at the site.

Legal Personality of the Deity, Lord Rama

The Court proceeded, inter alia, on the following findings: The Nirmohis (Hindus) claimed that they were, at all material times, in charge and management of the structure at the disputed site which according to them was a temple until 29 December 1949, on which date legal steps were ordered under Section 145 of the Code of Criminal Procedure 1898.

Two important questions were formulated in this case: First, what are the exact contours of the legal personality ascribed to a Hindu Idol. Second, can property of a corporeal nature (in this case land) be ascribed a distinct legal personality.

The nuances of juristic personality of ‘Bhagwan Sri Ram Virajman’, the deity Lord Rama, was one of the main points discussed in this case.

Collection of Persons or Inanimate Object (Ship) Can Be a Legal Person

Juristic persons hold rights, entitlements, liabilities and duties. The artificial legal persons may be a collection of natural persons (e.g. corporation) or an inanimate object (e.g. a ship). A ship has a juridical personality, having both rights and liabilities (sometimes distinct from those of the owner) which may be enforced by process, and that the decree against the vessel is binding upon all interested in her. It is 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.

Courts Recognises Legal Personality to Give Effect to the Dedication

The Supreme Court observed that courts recognised the legal personality of the Hindu Idol to give effect to the dedication of the founder of the endowment. The ‘recognition of juristic personality was…devised by the courts to give legal effect to the Hindu practice of dedicating property for a religious or ‘pious’ purpose’. When the founder was not alive and the shebait was not the owner of the lands, the courts (and through them the State) give effect to the original dedication conferring the legal personality to the idol. 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 (a) protect the endowment against mal-administration by the human agencies entrusted with the day to day management of the idol,and (b) protect the interests of devotees. It was also found that legal rights entitled to by the idol was not dependent on the existence of an express trust.

Juristic Personality of ‘Bhagwan Sri Ram Virajman’

Before exploring whether the disputed site, ‘Ram Janmabhoomi’ itself is a juristic person, the Court enquired into the legal status of the idol (First plaintiff in suit 5 – Shri Ram Virajman). Relying on statements of witnesses and travelogues of historical importance, it was found by the Apex Court that Hindu devotees believed that the resident deity of Ram Janmabhoomi was the embodiment of Lord Ram.

Conferral of Legal Personality Is Recognition of Pious Purpose

While delving into the jurisdictional foundation as to juristic personality of Idols, the Apex Court observed as under:

  • “116. … 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 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.”

Legal Fictions Are to Protect Properties Dedicated to Pious Purpose

The Supreme Court concluded the rationale of conferring legal personality to Idol as under:

  • “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-sic). The second is the merging of the pious purpose itself and the Idol which embodies the pious purpose to ensure the fulfillment 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.”

Destruction of Idol Does Not Affect Legal Personality

Our Apex Court, explained further as under:  

  • “127. … 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.”

Legal Personality of Idol Is Not Dependent On Its Continued Existence

The Court pointed out that the legal personality of the deity is not dependent on the continued existence of the idol. It reads as under:

  • “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.”

Beneficiaries of Endowments Are Not Idols but Worshippers

The Supreme Court quoted the following from Deoki Nandan Vs. Murlidhar (1957): AIR 1957 SC 133:  

  • “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 (1910) 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”.
  • 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.”

Idol as Representing Spiritual Purpose of Donor Is the Juristic Person

The Supreme Court quoted the following from Yogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta (1969): AIR 1969 SC 1089:

  • “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. Justice 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.”

Doctrine on ‘Merger’ – ‘Entity of the Idol’ Is Linked With ‘Pious Purpose’

As established in earlier decisions, neither God nor any supernatural being could be a person in law; and it is not correct that the idol or image itself develops into a legal person as soon as it is consecrated. Juristic personality of an Idol stands connected to the ‘pious purpose’ of the founder. Therefore, to give a logical proposition as to the ‘juristic personality’ of idol, the ‘entity of the idol’ has to be linked with the ‘pious purpose’.  It is vividly explained in this decision.

While explaining the legal personality of an Idol the Court held as under:

  • “123. … The first is to recognise the pious purpose of the testator as a legal entity capable of holding property in an ideal sense. The second is the merging of the pious purpose itself and the Idol which embodies the pious purpose to ensure the fulfillment of the pious purpose”

It is obvious that the Court brings-forth the doctrine of “merger” based on the following well accepted jurisprudential notions:

  1. Legal entity of an idol is conceived only in an ideal sense.
  2. The idol is chosen as the centre for legal relations.
  3. Idol is the embodiment of the pious purpose of its founder.
  4. A material object that represents a ‘purpose’ can be a legal person.

It Is the Idol that is the Embodiment of Pious Purpose

Relying mainly upon one of the oldest decisions in this subject, Manohar Ganesh Tambekar  Vs.  Lakhmiram (1887), ILR (1888) 12 Bom 247, our Apex Court held that juristic personality could not be conferred upon Ram Janmabhumi.  It is held as under:

  • “138. …The decision (Manohar Ganesh Tambekar  Vs.  Lakhmiram) 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.”

Hindu devotees were in settled possession in the outer courtyard

  • 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.
  • The construction of the railing by the colonial administration was not an attempt to settle proprietary rights. It was an expedient measure to ensure law and order.
  • The decision of the colonial administration to allow the opening of an additional door to the outer courtyard in 1877 was 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 was 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.

Continuing Dispute.

  • This possession of the Hindu devotees over the outer courtyard was open and to the knowledge of the Muslims.
  • The extensive nature of worship by the Hindus was 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.
  • 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.

Claim and Argument on Ram Janmabhumi

The plaintiffs in Suit No. 5 in the batch of suits considered by the Supreme Court, were the deity of Lord Ram and the Janmasthan (both of whom were asserted to be juridical persons) through a next friend impleaded as a third plaintiff. The suit was for a declaration that the entire premises comprised of annexures 1, 2 and 3 to the plaint constituted Ram Janmabhumi and for an injunction against interference in the construction of a new temple after the demolition of the existing building.

Placing reliance on the decision of the Madras High Court in TRK Ramaswami Servai Vs. The Board of Commissioners for the Hindu Religious Endowments, Madras, 1950 ILR(Mad) 799 it was contend that the presence of an idol is not an indispensable 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.

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.

The Muslim parties (defendant Nos. 6 to 8) in their written statement took the plea 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.

Ram Janmabhumi: Conception on Legal Personality

One of the main points came for consideration was whether the Ram Janmabhumi, or the birth-place of Lord Ram, was an object of worship and whether the land itself was a Deity, and therefore it was a legal person. It was argued that the construction of the mosque on the land by Emperor Babur in 1528 did not take away its character as a Deity. It was also contended that the disputed land being a legal person, it was res nullius (vest in nobody) and res extra commercium (not alienable); and therefore, not a property that could be subjected to adverse possession. The land itself had legal personality and that therefore it was not subject to the possessory claims of other parties. On behalf of the plaintiffs in suit No. 5, it had also been argued that a juristic entity cannot be owned, nor is it divisible.

Conferment of Legal Personality on Immoveable Property – Not Law

This argument was opposed by the Sunni Waqf Board pointing out that the conferment of legal personality on immoveable property was not supported by the existing law. It was also asserted that the law of adverse possession and limitation would apply to claims involving property owned by the Idol.

The Court held that the Ram Jamnabhoomi itself could not be conferred with legal rights. First, it emphasised that land, were it given legal rights, would be an entirely different type of juristic entity than a Hindu idol. The question became not whether the land could be vested in the idol, but rather whether the land itself had legal rights. The Bench held that were it to confer the land with legal rights, it would in effect be extinguishing competing claims for the title purely on the basis of the faith and belief of Hindu devotees. After all, a legal personality is not subject to title claims. The Bench observed that to resolve the dispute in this manner would be against the secular nature of the Constitution.

Conferment of Legal Personality – will alter characteristics of property

Referring to The Mosque, Masjid Shahid Ganj Vs. Shiromani Gurdwara Parbandhak Committee, Amritsar (AIR 1940 PC 116) the Court observed that recognision of immovable property as a juristic entity, would alter the essential characteristic of immovable property. Unlike a juristic entity, immovable property is subject to ownership and division. The Bench reiterated that the purpose of conferring an inanimate object with legal rights in the context of Hindu endowments, is to legally protect endowed property.It is observed that ‘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 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.’  .

Whether a temple pre-existed

Though it had been asserted that the disputed structure was constructed over a Hindu temple, there was no specific finding in the report of the Archaeological Survey of India (ASI) that the underlying structure was a Lord Ram temple. The ASI has also not opined whether a structure was demolished for the purpose of building the disputed structure, though it clearly demonstrated the presence of successive structural activity underneath the disputed structure.

 Report of the ASI, not sufficient to claim title

With respect to the Report of Archaeological Survey of India (ASI) the Supreme Court held as follows:

  • “648. No argument other than a bare reliance on the ASI report was put forth. No evidence was led by the plaintiffs in Suit 5 to support the contention that even if the underlying structure was believed to be a temple, the rights that flow from it were recognised by subsequent sovereigns. The mere existence of a structure underneath the disputed property cannot lead to a legally enforceable claim to title today. Subsequent to the construction of the ancient structure in the twelfth century, there exists an intervening period of four hundred years prior to the construction of the mosque. No evidence has been led with respect to the continued existence of the legal regime or any change in legal regime. It is admitted by all parties that at some point during the reign of the Mughal empire, a mosque was constructed at the disputed site. Even if this Court was to assume that the underlying structure was in fact a Hindu temple which vested title to the disputed site in the plaintiff deities, no evidence has been led by the plaintiffs in Suit 5 to establish that upon the change in legal regime to the Mughal sovereign, such rights were recognised.”

Mosque Was Constructed Upon a (Hindu) Structure of Twelfth Century

Marshaling 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, the Court held in para 788 as under:

“I. The report of the ASI indicates the following position:

  1. Archaeological findings 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.;
  2.  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;
  3. 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.;
  4. 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
  5. The layered excavation at the site of excavation has also revealed the existence of a circular shrine together with a makarapranala 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:

  1. The foundation of the mosque is based on the walls of a large pre-existing structure;
  2. The pre-existing structure dates back to the twelfth century; and
  3. 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.

No Evidence What Transpired In Four Centuries

II  The conclusion in the ASI report about the remains of an underlying structure of a Hindu religious origin symbolic of temple architecture of the twelfth century A.D. must however be read contextually with the following caveats:

  • (i) While the ASI report has found the existence of ruins of a preexisting structure, the report does not provide:
    • (a) The reason for the destruction of the pre-existing structure; and
    • (b) Whether the earlier structure was demolished for the purpose of the construction of the mosque.
  • (ii) Since the ASI report dates the underlying structure to the twelfth century, there is a time gap of about four centuries between the date of the underlying structure and the construction of the mosque.
    • No evidence is available to explain what transpired in the course of the intervening period of nearly four centuries;
  • (iii) The ASI report does not conclude that the remnants of the preexisting structure were used for the purpose of constructing the mosque (apart, that is, from the construction of the mosque on the foundation of the erstwhile structure); and
  • (iv) The pillars that were used in the construction of the mosque were black Kasauti stone pillars. ASI has found no evidence to show that these Kasauti pillars are relatable to the underlying pillar bases found during the course of excavation in the structure below the mosque.

Finding of Title Cannot Be Based on Archaeological Findings

III A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI.

Between the twelfth century to which the underlying structure is dated and the construction of the mosque in the sixteenth century, there is an intervening period of four centuries. No evidence has been placed on the record in relation to the course of human history between the twelfth and sixteen centuries. No evidence is available in a case of this antiquity on

  • (i)    the cause of destruction of the underlying structure; and
  • (ii) whether the pre-existing structure was demolished for the construction of the mosque. Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial.”

Case on ‘Dedication of Waqf’ and ‘Waqf by User’

The plaintiffs in Suit No. 4, the Sunni Waqf Board, claimed that the entire disputed site was dedicated by Babur for the purpose of public worship and a waqf was creared. Alternatively it was claimed that the disputed site had become a ‘waqf by user’.

The Court placed the case of the Sunni Waqf Board as under:

  •  “728. The documentary evidence relied upon by the plaintiffs in Suit 4 to demonstrate that the mosque stood on dedicated land originates after the colonial annexation of Oudh and after the year 1856. This was fairly admitted by Dr Dhavan, learned Senior Counsel appearing in behalf of the plaintiffs in Suit 4. The plaintiffs in Suit 4 were unable to establish a specific grant of the land as a foundation of legal title prior to the annexation of Oudh or upon the transfer of power to the colonial administration after 1857.
  • 729. An attempt was made at an advanced stage of the hearing to contend that the disputed site marked out by the letters ABCD 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.”

Court Rejected the Arguments on ‘Doctrine of Waqf by User’

The Court rejected the arguments on ‘doctrine of waqf by user’ observing the following:

  • “743. The contention of the plaintiffs in Suit 4 is that the entire property of the mosque, including both the inner and outer courtyards is waqf property. Once a property is recognised as waqf, the property is permanently and irrevocably vested in the Almighty, Allah from the date the waqf is deemed to be in existence. The land is rendered inalienable and falls within the regulatory framework of waqf legislation and Islamic law. The doctrine of waqf by user is well established in our law. However, as noted by the precedents detailed above, it is a doctrine of necessity to deal with cases where a property has been the site of long and consistent religious use by members of the Islamic faith but the original dedication is lost to the sands of time. Given the radical alterations to the characteristics of ownership of the property consequent upon a recognition of a waqf by user, the evidentiary burden to prove a waqf by useris high. The pleadings in the plaint in Suit 4 are deficient. No particulars of the extent or nature of the use have been set out. A stray sentence in paragraph 2 of the plaint cannot sustain a case of waqf by user. Moreover, the contention that the entire property was a single composite waqf cannot be assessed in a vacuum. The Court cannot ignore the evidence of established religious worship by Hindu devotees within the premises of the disputed site. If the contention urged by the plaintiffs in Suit 4 that the entire disputed property is a waqf by user is accepted, it would amount to extinguishing all rights claimed by the Hindus in the disputed property as a site of religious worship.
  • 744. In the decisions adverted to above in which claims of a waqf by user have been recognised, the claims were not made in the context of another religious community also utilising the property for the conduct of religious worship. It flows that the consequence of recognition of a waqf by user in the facts of these cases did not lead to the extinguishing of competing and legally tenable rights of another religious community.”

No Abandonment of the Mosque or Cessation of Namaz

The court observed in para 721 that there was no abandonment of the structure of the mosque or cessation of namaz within, as under:

  • “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.”

Why Awarded the Title to the Entire Site to the Deity, in a Nutshell

The Court found –

  • (i) “no conclusion can be drawn that prior to 1857, the disputed site was used for worship by the resident Muslim community”,
  • (ii) “there is a lack of adequate evidence to establish that there was exclusive or unimpeded use of the inner courtyard after 1858” (para 742),
  • (iii) the Hindus had an “exclusive and unimpeded possession of the outer courtyard”,
  • (iv) Hindus Never Accepted the Division (para 773),
  • (v) Hindus made “offerings to the ‘Garbh Grih’ while standing at the railing” 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”
  • (vi) the “possession over the inner courtyard was a matter of serious contestation” and “it cannot be said that the Muslims have been able to establish their possessory title to the disputed site as a composite whole” (para 781).

Cannot Conclude – Prior To 1857 Muslims worshipped at Disputed Site

In Para 741 the court observed as under:

  • “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 pre-existing Sita Rasoi led to the worship of the Hindus being institutionalised within the property marked by the letters A B C D.”

Claim of Unimpeded Possessory Title Raised by the Muslims Rejected

Pointing out that a claim to possessory title has to be based on exclusive and unimpeded possession which has to be established by evidence, the Court held as under:

  • “772. In assessing the title of the Muslims, the physical structure of the mosque is one fact to be taken into consideration. But a claim to possessory title has to be based on exclusive and unimpeded possession which has to be established by evidence. As shown above, the disputed premises are characterised by distinct architectural characteristics of Hindu and Islamic cultures. The claim to title will have to be judged from the perspective of long and continued possession. It becomes relevant to note the extent to which the Muslims have asserted their claim to the entirety of the property, which forms a composite whole, comprised of the inner and outer courtyards in comparison with the contesting claims of the Hindus. In relation to the outer courtyard, both Hindu and Muslim witnesses have admitted the presence of the Ramchabutra and other places of religious significance which were being continuously worshipped by the Hindus. The access of Hindus to and their possession of the outer courtyard was unimpeded.”

Hindus Never Accepted the Division

  • “773. Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the ‘Garbh-Grih‘ being the birth-place of Lord Ram. This is evident from the witness testimonies which indicate that pilgrims offered prayer standing at the railing by looking towards the sanctum sanctorum. Another relevant piece of evidence is the admission of the Moazzin of the Babri Mosque in his complaint dated 30 November 1858 against Nihang Singh. The Moazzin admitted that previously the symbol of Janamsthan had been there for hundreds of years and Hindus did puja inside the three domed structure. Absent any division of the site, the Hindus had multiple points and forms of worship within the disputed premises which included the Ramchabutra and Sita Rasoi and the parikrama of the disputed premises. Even after the railing was set up, Hindu worship at Ramchabutra, Sita Rasoi and of the idols placed below the fig and neem tree clearly indicated their exclusive and unimpeded possession of the outer courtyard. All the evidence indicates that a reasonable inference based on a preponderance of probabilities can be made that there was continuum of faith and belief of the Hindus that the ‘Garbh-Grih‘ was the place of birth of Lord Ram both prior to and after the construction of the wall. The use of the area within the railing by the Muslims was contentious and their access to the inner courtyard was landlocked; the only access being through the two gates to the outer portion and the area which were in the control of the Hindus.”

Evidence: Made Offerings to Birth-Place under the Central Dome

  • “781. From the documentary evidence, it emerges that: (i) Prior to 1856-7 there was no exclusion of the Hindus from worshipping within the precincts of the inner courtyard; (ii) The conflagration of 1856-7 led to the setting up of the railing to provide a bifurcation of the places of worship between the two communities; (iii) The immediate consequence of the setting up of the railing was the continued assertion of the right to worship by the Hindus who set up the Chabutra in the immediate proximity of the railing; (iv) Despite the existence of the railing, the exclusion of the Hindus from the inner courtyard was a matter of contestation and at the very least was not absolute; (v) As regards the outer courtyard it became the focal point of Hindu worship both on the Ramchabutra as well as other religious structures within the outer courtyard including Sita Rasoi. Though, the Hindus continued to worship at the Ramchabutra which was in the outer courtyard, by the consistent pattern of their worship including the making of offerings to the ‘Garbh Grih’ while standing at the railing, there can be no manner of doubt that this was in furtherance of their belief that the birth-place of Lord Ram was within the precincts of and under the central dome of the mosque; and (vi) The riots of 1934 and the events which led up to 22/23 December 1949 indicate that possession over the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard. From the above documentary evidence, it cannot be said that the Muslims have been able to establish their possessory title to the disputed site as a composite whole.”

Possessory Rights Over Inner and Outer Courtyard

In Clauses IV to VII of the para 788 which ‘marshal together the evidence on the claim of title in Suit 4 and Suit 5’ the Apex Court discussed the Historical records of travellers.

Historical records of Travellers

  • “Para 788 IV. Historical records of travellers (chiefly Tieffenthaler and the account of Montgomery Martin in the eighteenth century) indicate:
  •  (i) The existence of the faith and belief of the Hindus that the disputed site was the birth-place of Lord Ram;
  • (ii) Identifiable places of offering worship by the Hindus including Sita Rasoi, Swargdwar and the Bedi (cradle) symbolising the birth of Lord Ram in and around the disputed site;
  • (iii) Prevalence of the practice of worship by pilgrims at the disputed site including by parikrama (circumambulation) and the presence of large congregations of devotees on the occasion of religious festivals; and
  • (iv) The historical presence of worshippers and the existence of worship at the disputed site even prior to the annexation of Oudh by the British and the construction of a brick-grill wall in 1857.

Beyond the above observations, the accounts of the travellers must be read with circumspection. Their personal observations must carefully be sifted from hearsay – matters of legend and lore. Consulting their accounts on matters of public history is distinct from evidence on a matter of title. An adjudication of title has to be deduced on the basis of evidence sustainable in a court of law, which has withstood the searching scrutiny of cross-examination. Similarly, the contents of gazetteers can at best provide corroborative material to evidence which emerges from the record. The court must be circumspect in drawing negative inferences from what a traveller may not have seen or observed. Title cannot be established on the basis of faith and belief above. Faith and belief are indicators towards patterns of worship at the site on the basis of which claims of possession are asserted. The court has evaluated the rival claims to possessory title in a situation in which the state has expressly stated in its written statement that it claims no interest in the land.

Despite Mosque, Hindus worshiped as birth-place of Lord Ram

Para 788 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;

Disputed Site: a Composite Property despite Grill-Brick Wall

Para 788 VI. The setting up of a railing in 1857 by the British around the disputed structure of the mosque took place in the backdrop of a contestation and disputes over the claim of the Hindus to worship inside the precincts of the mosque. This furnished the context for the riots which took place between Hindus and Muslims in 1856-7. The construction of a grill-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;

Ramchabutra – An Assertion of the Hindu Right to Worship

Para 788 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;

Hindus Asserted Right to Pray Inside Domes

Para 788 VIII. Hindu worship at Ramchabutra, SitaRasoi 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;

Opening Additional Door Indicates Presence of Large Hindu Devotees

Para 788 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;

 Large Congregations of Hindu Devotees Visited

Para 788 X. Testimonies of both Hindu and Muslim witnesses indicate that on religious occasions and festivals such as Ram Navami, Sawan Jhoola, Kartik Poornima, Parikrama Mela and Ram Vivah, large congregations of Hindu devotees visited the disputed premises for darshan. The oral testimony of the Hindu devotees establishes the pattern of worship and prayer at Sita Rasoi, Ramchabutra and towards the ‘Garb Grih’, while standing at the railing of the structure of the brick wall;

Hindu Religious Symbols Inside and Outside Mosque

Para 788 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;

Contestation between the Two Communities over Worship

Para 788 XII. There can no denying the existence of the structure of the mosque since its construction in the sixteenth century with the inscription of ‘Allah’ on the structure. The genesis of the communal incident of 1856-7 lies in the contestation between the two communities over worship. The setting up of the railing in 1856-7 was an attempt by the administration to provide a measure of bifurcation to observe religious worship – namaz by the Muslims inside the railing within the domed structure of the mosque and worship by the Hindus outside the railing. Attempts by the Sikhs or faqirs to enter into the mosque and set up religious symbols for puja were resisted by the Muslims, resulting in the administration evicting the occupier;

Exclusive Possession of Hindus in the Outer Courtyard

 Para 788 XIII. After the construction of the grill-brick wall in 1857, there is evidence on record to show the exclusive and unimpeded possession of the Hindus and the offering of worship in the outer courtyard. Entry into the three domed structure was possible only by seeking access through either of the two doors on the eastern and northern sides of the outer courtyard which were under the control of the Hindu devotees;

Preponderance of Probabilities – Muslims did not Abandon Mosque

Para 788 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;

Mosque continued to Exist & Muslims Asserted Their Right to Pray

Para 788 XV. The contestation over the possession of the inner courtyard became the centre of the communal conflict of 1934 during the course of which the domes of the mosque sustained damage as did the structure. The repair and renovation of the mosque following the riots of 1934 at the expense of the British administration through the agency of a Muslim contractor is indicative of the fact the despite the disputes between the two communities, the structure of the mosque continued to exist as did the assertion of the Muslims of their right to pray. Namaz appears to have been offered within the mosque after 1934 though, by the time of incident of 22/23 December 1949, only Friday namaz was being offered. The reports of the Waqf Inspector of December 1949 indicate that the Sadhus and Bairagis who worshipped and resided in the outer courtyard obstructed Muslims from passing through the courtyard, which was under their control, for namaz within the mosque. Hence the Waqf Inspector noted that worship within the mosque was possible on Fridays with the assistance of the police;

Ouster of Muslims: Otherwise Than By Due Process of Law

Para 788 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;

Obliteration of Mosque – Egregious Violation of Rule of Law

Para 788 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”

Marshaling together the evidence on the claim of title in Suit 4 and Suit 5, the Court held in para 788 as under:

The Disputed Site is One Composite Whole; Mosque Destruction – a Serious Violation of the Rule of Law

  • “Para 788 XVII: (i) The disputed site is one composite whole. The railing set up in 1856-7 did not either bring about a sub-division of the land or any determination of title;
  • (ii) The Sunni Central Waqf Board has not established its case of a dedication by user;
  • (iii) The alternate plea of adverse possession has not been established by the Sunni Central Waqf Board as it failed to meet the requirements of adverse possession;
  • (iv) The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship;
  • (v) The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims;
  • (vi) The existence of the structure of the mosque until 6 December 1992 does not admit any contestation. The submission that the mosque did not accord with Islamic tenets stands rejected. The evidence indicates that there was no abandonment of the mosque by Muslims. Namaz was observed on Fridays towards December 1949, the last namaz being on 16 December 1949;
  • (vii) The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6, December 1992 constituted a serious violation of the rule of law; and
  • (viii) Consistent with the principles of justice, equity and good conscience, both Suits 4 and 5 will have to be decreed and the relief moulded in a manner which preserves the constitutional values of justice, fraternity, human dignity and the equality of religious belief.”

‘Janmasthan’ of Lord Rama

Finally, on the contentious point ‘whether disputed structure is the holy birth place of Lord Ram as per the faith, belief and trust of the Hindus’, the Apex Court(one among the learned Judges) ‘concluded on the conclusion that faith and belief of Hindus since prior to construction of Mosque and subsequent thereto has always been that Janamasthan of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence’.

Reliefs Granted

The Apex Court moulded the reliefs (M Siddiq Vs. Mahant Suresh Das: 2020-1 SCC 1) directing handing-over of the entire disputed land to a trust to build the Hindu temple. It also directed the government to give an alternate five-acre land to the Uttar Pradesh Sunni Central Waqf Board to build the mosque.

Further, the Court directed the Central Government to formulate a scheme, within three months, for the setting up of a trust with the powers to build a temple at the disputed site. The Supreme Court also directed to give appropriate representation, in the proposed trust, to Nirmohi Akhara (plaintiff in Suit No. 3 which claimed Shebait/management rights over the site).

Ayodhya Case – Proceeded on the principle: ‘The court is the protector of all charities’.

It is held in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) as under:

  • When a Shebait is negligent in its duties or takes actions that are hostile to the deity or improperly alienated trust property or refuses to act for the benefit of the idol or where the Shebait’s actions are prejudicial to the interest of the idol, it becomes necessary to confer on a next friend the right to bring an action in law against the Shebait; and a worshipper has an ad hoc power of representation to protect the interest of the idol.
  • The court can craft any number of reliefs, including the framing of a scheme. The question of relief is fundamentally contextual and must be framed by the court in light of the parties before it and the circumstances of each case.

It is clear that the our Apex Court has rendered the above edicts adopting the view that ‘the court is the protector of all charities’.

Conclusion – ‘Hard-Headedness of the Subject Matter’ is the Answer to all Difficulties.

  • It is a fact – that the reliefs granted in this case were not that were asked for by the parties to these suits.
  • Doubts are raised – as to whether the legal riddles that were thrashed out in the Judgment are precisely translated into the reliefs granted.
  • Numerous suggestions could be proffered – as to formulating the decree in the frame of the conclusions in the Judgment [including the one to keep ‘open’ the disputed land without any structure [for various reasons].
    • But, it is definite that the decree handed down is one that could settle the disputes in a pragmatic way; and it is rendered judiciously invoking the Constitutional edict – ‘for doing complete justice’ (Article 142 of the Constitution) and applying the doctrine – ‘the Court is the protector of all charities’.
  • The ‘hard-headedness of the subject matter’ is the answer to the qualms; and, ‘expediency’ justifies this well-intended unanimous decision.

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

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1 Comment

  1. Z.Y. Himsagar says:
    January 27, 2022 at 10:24 am

    Excellent analysis by the author in a nutshell with brevity and clarity. S. Padmavathi and D.G. Hari Prasath, Advocate, Madras High Court.

    Liked by 1 person

    Reply

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