M Siddiq (D) Thr Lrs Vs Mahant Suresh Das & Ors
Date: SATURDAY, NOVEMBER 9TH, 2019
Unanimous Judgment passed by
- CJI. RANJAN GOGOI
- J. S A BOBDE
- J. DR DHANANJAYA Y CHANDRACHUD
- J. ASHOK BHUSHAN
- J. S ABDUL NAZEER
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
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
Read original Judgment: M Siddiq (D) Thr Lrs Vs Mahant Suresh Das & Ors
JUDGMENT
INDEX
Introduction
An overview of the suits
Evidence: a bird‘s eye view
The aftermath of 1856-7
D.1Response to the wall
D.2Period between 1934-1949
Proceedings under Section 145
Points for determination
The three inscriptions
Judicial review and characteristics of a mosque in Islamic law
Places of Worship Act
Juristic personality
J.1Development of the law
J.2Idols and juristic personality
J.3Juristic personality of the first plaintiff
J.4Juristic personality of the second plaintiff
Analysis of the suits
Suit 1: Gopal Singh Visharad
L.1Pleadings
L.2Issues and findings of the High Court
L.3Analysis
Suit 3: Nirmohi Akhara
M.1Pleadings
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
M.6 Nirmohi Akhara‘s claim to possession of the inner courtyard Documentary evidence in regard to the mosque (1934-1949)
Suit 5: The deities
N.1Array of parties
N.2No contest by the State of Uttar Pradesh
N.3Pleadings
N.4Written statements
N.5Issues and findings of the High Court
N.6Shebaits: an exclusive right to sue?
A suit by a worshipper or a person interested Nirmohi Akhara and shebaiti rights
N.7Limitation in Suit 5
The argument of perpetual minority
N.8The Suit of 1885 and Res Judicata
N.9Archaeological 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
Suit 4: Sunni Central Waqf Board
O.1Analysis of the plaint
O.2Written 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 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
Analysis on title
P.1Marshalling the evidence in Suit 4 and Suit 5
P.2Conclusion on title
Reliefs and directions
PART A
Introduction
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 birth-place of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claims it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur. The lands of our country have witnessed invasions and dissensions. Yet they have assimilated into the idea of India everyone who sought their providence, 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.
This Court is tasked with the resolution of a dispute whose origins are as old as the idea of India itself. The events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime. Constitutional values form the cornerstone of this nation and have facilitated the lawful resolution of the present title dispute through forty-one days of hearings before this Court. The dispute in these appeals arises out of four regular suits which were instituted between 1950 and 1989. Before the Allahabad High Court, voluminous evidence, both oral and documentary was led, resulting in three judgements running the course of 4304 pages. This judgement is placed in
PART A
Challenge in the appeals.
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.
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.
The Nirmohi Akhara represents a religious sect amongst the Hindus, known as the Ramanandi Bairagis. The Nirmohis claim that they were, at all material times, in charge and management of the structure at the disputed site which according to them was a ‗temple‘ until 29 December 1949, on which date an attachment was ordered under Section 145 of the Code of Criminal Procedure 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‘.
The Uttar Pradesh Sunni Central Board of Waqf (―Sunni Central Waqf Board‖) and other Muslim residents of Ayodhya instituted a suit in 1961 for a
declaration of their title to the disputed site. According to them, the old structure was a mosque which was built on the instructions of Emperor Babur by Mir Baqi who was the Commander of his forces, following the conquest of the sub-continent by the Mughal Emperor in the third decade of the sixteenth century. The Muslims deny that the mosque was constructed on the site of a destroyed 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.
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 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.
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.
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.
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.
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. 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.
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-cum-Ayodhya issued a preliminary order under Section 145 of the Code of Criminal Procedure 18984 (―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 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.
4―Section 145. Procedure where dispute concerning land, etc, is likely to cause breach of peace
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…‖
The institution of the suits
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 ad-interim order, as modified. On 26 May 1955, the appeal6 against the interim order was dismissed by the High Court of Allahabad.
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.
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
Regular Suit No 2 of 1950. Subsequently renumbered as Other Original Suit (OOS) No 1 of 1989.
FAFO No 154 of 1951
Regular Suit no 25 of 1950 (subsequently renumbered as Other Original Suit (OOS) No 2 of 1989) 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.
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 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
25.5.50
Commissioner.
Site map (Plan I)
Site map (Plan II)
16. On 17 December 1959, Nirmohi Akhara instituted a suit8 through its Mahant (“Suit 3”) before the Civil Judge at Faizabad claiming that its “absolute right” of managing the affairs of the Janmasthan and the temple had been 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 Petition10 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.
8 Regular Suit No 26 of 1959 (subsequently renumbered as OOS No. 3 of 1989)
9 Regular Suit No. 12 of 1961 (subsequently renumbered as OOS No. 4 of 1989)
10 Civil Misc. Writ No. 746 of 1986
20. On 1 July 1989, a Suit11 (―Suit 5) was brought before the Civil Judge, Faizabad by the deity (―Bhagwan Shri Ram Virajman‖) and the birth-place (―Asthan Shri Ram Janam Bhumi, Ayodhya‖), through a next friend for a declaration of title to the disputed premises and to restrain the defendants from interfering with or raising any objection to the construction of a temple. Suit 5 was 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 makeshift structure of a temple was constructed at the place under the erstwhile
11 Regular Suit No. 236 of 1989 (subsequently renumbered as OOS No. 5 of 1989)
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 India12 held Section 4(3), which provided for the abatement
of all pending suits as unconstitutional. The rest of the Act of 1993 was held to be
valid. The Constitution Bench declined to answer the Presidential reference and,
as a result, all pending suits and proceedings in relation to the disputed premises
stood revived. The Central Government was appointed as a statutory receiver for
the maintenance of status quo and to hand over the disputed area in terms of the
12 (1994) 6 SCC 360
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
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
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, 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
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 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
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
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
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
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;
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.
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.
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 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.
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 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 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.
PART B
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:
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
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 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:
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 sub-continent by the Mughal emperor;
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;
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‖;
The Chief Commissioner Waqf appointed under the U.P. Muslim Waqf Act 1936 had held the mosque to be a Sunni Waqf;
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‖;
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‖;
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
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:
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;
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 attaching the disputed property. These orders were passed to maintain public peace; and
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:
The building in dispute is not the Janmasthan of Lord Ram and no idols were ever installed in it;
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;
On the night of 22-23 December 1949, the idols were surreptitiously brought into the mosque;
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;
The mosque had the character of a waqf and its ownership vested in God;
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 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
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.
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:
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;
The Janmasthan, commonly known as Janmabhumi, is the birth-place of Lord Ram and belongs to and has always been managed by Nirmohi Akhara;
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;
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;
Nirmohi Akhara owns and manages several temples;
No Mohammedan has been allowed to enter the temple building since 1934; and
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.
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:
The Suit of 1885 by Raghubar Mahant Das was confined to Ramchabutra and has been dismissed by the Sub-Judge, Faizabad;
The property of the mosque was constituted as a waqf under the U.P. Muslim Waqf Act 1936;
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;
On the eastern and northern sides of the mosque, there are Muslim graves;
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
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.
37. In the written statement filed by defendant no 10, Umesh Chandra Pandey, it was submitted:
(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
(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;
(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 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 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 17×21 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 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
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
(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.
- 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 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.
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 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;
(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;
(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
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
(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;
(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;
(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;
(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.
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.
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
(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:
(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.
(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 evidence13. The documentary exhibits of the parties during the course of trial comprised of 533 exhibits of which a brief categorisation is:
- Plaintiffs (Suit-1) – Exhibits No. 1 to 34 (Total 34)
- Plaintiffs (Suit-3) – Exhibits No. 1 to 21 (Total 21)
- Plaintiffs (Suit-4) – Exhibits No. 1 to 128 (Total 128)
- Plaintiffs (Suit-5) – Exhibits No. 1 to 132 (Total 132)
- Defendants (Suit-1) – Exhibits No. A1 to A72 (Total 73)
- 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)
2010 (ADJ), Vol. I, pages 624-662
7. Defendants (Suit-5)
(i) Exhibits No. C1 to C11 (ii) Exhibits No. D1 to D38 (iii) Exhibits No. E1 to E8
(Total 11)
(Total 38)
(Total 12)
Grand Total – 533
These exhibits broadly comprise of :
Religious texts;
Travelogues;
Gazetteers;
Translations of inscriptions on pillars;
Reports of Archaeological excavation;
Photographs prior to demolition; and
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 :
- P.W 1 Sri Mohd. Hashim
- PW 2 Hazi Mahboob Ahmed
- PW 3 Farooq Ahmad
- PW 4 Mohd. Yasin
- PW 5 Sri Abdul Rehman
- PW 6 Mohd. Yunus Siddiqui
- PW 7 Sri Hashmat Ullah Ansari
- PW 8 Sri Abdul Aziz
- PW 9 Syeed Akhlak Ahmad
- PW 10 Mohd. Idris
- PW11 Mohd. Burhanuddin
- PW 12 Ram Shanker Upadhyay
- PW 13 Suresh Chandra Mishra
- PW 14 Jalil Ahmad
- PW 21 Dr. M. Hashim Qidwai
- PW 23 Mohd Qasim Ansari
- PW 25 Mohd. Sibte Naqvi
(II) Expert Witnesses (Historians)
18. PW 15 Sushil Srivastava
19. PW 18 Prof. Suvira Jaiswal
20. PW 20 Prof. Shirin Musavi
(III) Expert Witnesses (Archaeologists)
21. PW 16 Prof. Suraj Bhan
22. PW 24 Prof. D. Mandal
23. PW 27 Dr. Shereen F. Ratnagar
24. PW 28 Dr. Sita Ram Roy
25. PW 29 Dr. Jaya Menon
26. PW 30 Dr. R. C. Thakran
27. PW 31 Dr. Ashok Datta
28. PW 32 Dr. Supriya Verma
(IV) Private Commissioner
29. PW 17 Zafar Ali Siddiqui
(V) Expert Witnesses (Religious matters)
30. PW 19 Maulana Atiq Ahmad
31. PW 22 Mohd. Khalid Naqui
32. PW 26 Kalbe Jawed
276. (b) Witnesses produced in Suit-5 by Plaintiff :
(I) Witness of facts :
- OPW 1 Mahant Paramhans Ram Chandra
Das - OPW 2 Sri D.N. Agarwal
- OPW 4 Harihar Prasad Tewari
- OPW 5 Ram Nath Mishra alias Banarsi Panda
- OPW 6 Hausila Prasad Tripathit
- OPW 7 Sri Ram Surat Tewari
- OPW 8 Ashok Chandra Chatterjee
- OPW 12 Kaushal Kishor Misra
- 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
(III) Expert Witness (Epigraphist and Historian)
15. OPW 9 Dr. T.P. Verma
(IV) Expert Witnesses (Epigraphist)
16. OPW 10 Dr. Voluvyl Vyasarayasastri Ramesh
17. OPW 15 Dr. M.N. Katti
(V) Expert Witnesses (Historians)
18. OPW 11 Dr. Satish Chandra Mittal
(VI) 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 :
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 :
- DW 3/1 Mahant Bhaskar Das
- DW 3/2 Sri Raja Ram Pandey
- DW 3/3 Sri Satya Narain Tripathi
- DW 3/4 Mahant Shiv Saran Das
- DW 3/5 Sri Raghunath Prasad Pandey
- DW 3/6 Sri Sita Ram Yadav
- DW 3/7 Mahant Ramji Das
- DW 3/8 Pt. Shyam Sundar Mishra @ Barkau Mahraj
- DW 3/9 Sri Ram Ashrey Yadav
- DW 3/11 Sri Bhanu Pratap Singh
- DW 3/12 Sri Ram Akshaibar Pandey
- DW 3/13 Mahant Ram Subhag Shashtri
- DW 3/15 Narendra Bahadur Singh
- DW 3/16 Sri Shiv Bhikh Singh
- DW 3/17 Sri Mata Badal Tewari
- DW 3/18 Sri Acharya Mahant Bansidhar Das @ Uriya Baba
- DW 3/19 Sri Ram Milan Singh
- DW 3/20 Mahant Raja Ramchandr-acharya
(II) Others : - DW 3/10 Sri Pateshwari Dutt Pandey
- 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 :
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 :
2. DW 6/1-1 Sri Haji Mahboob Ahmad.
continued……
Read the original Judgments here
JUDGMENT NO 2[Owner of the land is Ramlala Virajman]
JUDGMENT NO_1 [ Dismissal the SLP of Shia Waqf Board for Delay]
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:
(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 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.
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.
