REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos 10866-10867 of 2010
M Siddiq (D) Thr Lrs …Appellants
Versus
Mahant Suresh Das & Ors …Respondents
WITH
Civil Appeal Nos 4768-4771/2011
WITH
Civil Appeal No 2636/2011
WITH
Civil Appeal No 821/2011
WITH
Civil Appeal No 4739/2011
WITH
Civil Appeal Nos 4905-4908/2011
WITH
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
J U D G M E N T
INDEX
A. Introduction
B. An overview of the suits
C. Evidence: a bird’s eye view
D. The aftermath of 1856-7
D.1 Response to the wall
D.2 Period between 1934-1949
E. Proceedings under Section 145
F. Points for determination
G. The three inscriptions
H. Judicial review and characteristics of a mosque in Islamic law
I. Places of Worship Act
J. Juristic personality
J.1 Development of the law
J.2 Idols and juristic personality
J.3 Juristic personality of the first plaintiff
J.4 Juristic personality of the second plaintiff
K. Analysis of the suits
L. Suit 1: Gopal Singh Visharad
L.1 Pleadings
L.2 Issues and findings of the High Court
L.3 Analysis
M. Suit 3: Nirmohi Akhara
M.1 Pleadings
M.2 Conflict between Suit 3 and Suit 5
M.3 Issues and findings of the High Court
M.4 Limitation in Suit 3
M.5 Oral testimony of the Nirmohi witnesses
M.6 Nirmohi Akhara’s claim to possession of the inner courtyard Documentary evidence in regard to the mosque (1934-1949)
N. Suit 5: The deities
N.1 Array of parties
N.2 No contest by the State of Uttar Pradesh
N.3 Pleadings
N.4 Written statements
N.5 Issues and findings of the High Court
N.6 Shebaits: an exclusive right to sue?
A suit by a worshipper or a person interested Nirmohi Akhara and shebaiti rights
N.7 Limitation in Suit 5
The argument of perpetual minority
N.8 The Suit of 1885 and Res Judicata
N.9 Archaeological report
N.10 Nature and use of the disputed structure: oral evidence
N.11 Photographs of the disputed structure
N.12 Vishnu Hari inscriptions
N.13 The polestar of faith and belief Travelogues, gazetteers and books
Evidentiary value of travelogues, gazetteers and books
N.14 Historian’s report
O. Suit 4: Sunni Central Waqf Board
O.1 Analysis of the plaint
O.2 Written statements
O.3 Issues and findings of the High Court
O.4 Limitation in Suit 4
O.5 Applicable legal regime and Justice, Equity and Good Conscience
O.6 Grants and recognition
O.7 Disputes and cases affirming possession Impact of Suit of 1885
Incidents between 1934 and 1950
O.8 Proof of namaz
O.9 Placing of idols in 1949
O.10 Nazul land
O.11 Waqf by user
O.12 Possession and adverse possession
O.13 Doctrine of the lost grant
O.14 The smokescreen of the disputed premises – the wall of 1858
O.15 Analysis of evidence in Suit 4
O.16 The Muslim claim to possessory title
P. Analysis on title
P.1 Marshalling the evidence in Suit 4 and Suit 5
P.2 Conclusion on title
Q. Reliefs and directions
A. Introduction
1. These first appeals centre around a dispute between two religious communities both of whom claim ownership over a piece of land admeasuring 1500 square yards in the town of Ayodhya. The disputed property is of immense significance to Hindus and Muslims. The Hindu community claims it as the 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.
2. This Court is tasked with the resolution of a dispute whose origins are as old as the idea of India itself. The events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime. Constitutional values form the cornerstone of this nation and have facilitated the lawful resolution of the present title dispute through forty-one days of hearings before this Court. The dispute in these appeals arises out of four regular suits which were instituted between 1950 and 1989. Before the Allahabad High Court, voluminous evidence, both oral and documentary was led, resulting in three judgements running the course of 4304 pages. This judgement is placed in challenge in the appeals.
3. The disputed land forms part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar in the District of Faizabad. An old structure of a mosque existed at the site until 6 December 1992. The site has religious significance for the devotees of Lord Ram, who believe that Lord Ram was born at the disputed site. For this reason, the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e. birth-place of Lord Ram). The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the other hand, the Muslims contended that the mosque was built by or at the behest of Babur on vacant land. Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property.
4. A suit was instituted in 1950 before the Civil Judge at Faizabad by a Hindu worshipper, Gopal Singh Visharad seeking a declaration that according to his religion and custom, he is entitled to offer prayers at the main Janmabhumi temple near the idols.
5. The Nirmohi Akhara represents a religious sect amongst the Hindus, known as the Ramanandi Bairagis. The Nirmohis claim that they were, at all material times, in charge and management of the structure at the disputed site which according to them was a ‘temple’ until 29 December 1949, on which date an attachment was ordered under Section 145 of the Code of Criminal Procedure 1898. In effect, they claim as shebaits in service of the deity, managing its affairs and receiving offerings from devotees. Theirs is a Suit of 1959 for the management and charge of ‘the temple’.
6. The Uttar Pradesh Sunni Central Board of Waqf (“Sunni Central Waqf Board”) and other Muslim residents of Ayodhya instituted a suit in 1961 for a declaration of their title to the disputed site. According to them, the old structure was a mosque which was built on the instructions of Emperor Babur by Mir Baqi who was the Commander of his forces, following the conquest of the 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.
7. A suit was instituted in 1989 by a next friend on behalf of the deity (“Bhagwan Shri Ram Virajman”) and the birth-place of Lord Ram (“Asthan Shri Ram Janmabhumi”). The suit is founded on the claim that the law recognises both the idol and the birth-place as juridical entities. The claim is that the place of birth is sanctified as an object of worship, personifying the divine spirit of Lord Ram. Hence, like the idol (which the law recognises as a juridical entity), the place of birth of the deity is claimed to be a legal person, or as it is described in legal parlance, to possess a juridical status. A declaration of title to the disputed
site coupled with injunctive relief has been sought.
8. These suits, together with a separate suit by Hindu worshippers were transferred by the Allahabad High Court to itself for trial from the civil court at Faizabad. The High Court rendered a judgment in original proceedings arising out of the four suits and these appeals arise out of the decision of a Full Bench dated 30 September 2010. The High Court held that the suits filed by the Sunni Central Waqf Board and by Nirmohi Akhara were barred by limitation. Despite having held that those two suits were barred by time, the High Court held in a split 2:1 verdict that the Hindu and Muslim parties were joint holders of the disputed premises. Each of them was held entitled to one third of the disputed property. The Nirmohi Akhara was granted the remaining one third. A preliminary decree to that effect was passed in the suit brought by the idol and the birth-place of Lord Ram through the next friend.
9. Before deciding the appeals, it is necessary to set out the significant events which have taken place in the chequered history of this litigation, which spans nearly seven decades.
10. The disputed site has been a flash point of continued conflagration over decades. In 1856-57, riots broke out between Hindus and Muslims in the vicinity of the structure. The colonial government attempted to raise a buffer between the two communities to maintain law and order by set ting up a grill-brick wall having a height of six or seven feet. This would divide the premises into two parts: the inner portion which would be used by the Muslim community and the outer portion or courtyard, which would be used by the Hindu community. The outer courtyard has several structures of religious significance for the Hindus, such as the Sita Rasoi and a platform called the Ramchabutra. In 1877, another door was opened on the northern side of the outer courtyard by the colonial government, which was given to the Hindus to control and manage. The bifurcation, as the record shows, did not resolve the conflict and there were numerous attempts by one or other of the parties to exclude the other.
11. In January 1885, Mahant Raghubar Das, claiming to be the Mahant of Ram Janmasthan instituted a suit1 (“Suit of 1885”) before the Sub-Judge, Faizabad. The relief which he sought was permission to build a temple on the Ramchabutra situated in the outer courtyard, measuring seventeen feet by twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885, the trial judge dismissed the suit, `noting that there was a possibility of riots breaking out between the two communities due to the proposed construction of a temple. The trial judge, however, observed that there could be no question or doubt regarding the possession and ownership of the Hindus over the Chabutra. On 18 March 1886, the District Judge dismissed the appeal against the judgment of the Trial Court2 but struck off the observations relating to the ownership of Hindus of the Chabutra contained in the judgment of the Trial Court. On 1 November 1886, the Judicial Commissioner of Oudh dismissed the second appeal3, noting that the Mahant had failed to present evidence of title to establish ownership of the Chabutra. In 1934, there was yet another conflagration between the two communities. The domed structure of the mosque was damaged during the incident and was subsequently repaired at the cost of the colonial government.
12. The controversy entered a new phase on the night intervening 22 and 23 December 1949, when the mosque was desecrated by a group of about fifty or sixty people who broke open its locks and placed idols of Lord Ram under the central dome. A First Information Report (“FIR”) was registered in relation to the incident. On 29 December 1949, the Additional City Magistrate, Faizabad-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.
The institution of the suits
13. On 16 January 1950, a suit was instituted by a Hindu devotee, Gopal Singh Visharad5, (“Suit 1”) before the Civil Judge at Faizabad, alleging that he was being prevented by officials of the government from entering the inner courtyard of the disputed site to offer worship. A declaration was sought to allow the plaintiff to offer prayers in accordance with the rites and tenets of his religion (“Sanatan Dharm”) at the “main Janmabhumi”, near the idols, within the inner courtyard, without hindrance. On the same date, an ad-interim injunction was issued in the suit. On 19 January 1950, the injunction was modified to prevent the idols from being removed from the disputed site and from causing interference in the performance of puja. On 3 March 1951, the Trial Court confirmed the ad- interim order, as modified. On 26 May 1955, the appeal6 against the interim order was dismissed by the High Court of Allahabad.
14. On 5 December 1950, another suit was instituted by Paramhans Ramchandra Das7 (“Suit 2”) before the Civil Judge, Faizabad seeking reliefs similar to those in Suit 1. Suit 2 was subsequently withdrawn on 18 September 1990.
15. On 1 April 1950, a Court Commissioner was appointed in Suit 1 to prepare a map of the disputed premises. On 25 June 1950, the Commissioner submitted a report, together with two site plans of the disputed premises which were numbered as Plan nos 1 and 2 to the Trial Court. Both the report and maps indicate the position at the site and are reproduced below:
Report of the Commissioner
“REPORT
Sir,
I was appointed a commissioner in the above case to prepare a site plan of the locality and building in suit on scale. Accordingly, in compliance with the order of the court, I visited the locality on 16.4.50 and again on 30.4.50 after giving due notice to the counsel of the parties, and made necessary measurements on the spot. On the first day of my visit none of the parties were present, but on the second day defendant no. 1 was present with Shri Azimullah Khan and Shri Habib Ahmad Khan counsel. At about noon defendant no. 1 presented an application, attached herewith, when the measurement work had already finished.
Plan No. I represents the building in suit shown by the figure ABCDEF on a larger scale than Plan no.II, which represents the building with its locality.
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.
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 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 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. Sub- section (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.
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:
(i) A declaration of his entitlement to worship and seek the darshan of Lord Ram, “according to religion and custom” at the Janmabhumi temple without hindrance; and
(ii) A permanent and perpetual injunction restraining defendant nos 1 to 10 from removing the idols of the deity and other idols from the place where they were installed; from closing the way leading to the idols; or interfering in worship and darshan.
Defendant nos 1 to 5 are Muslim residents of Ayodhya; defendant no 6 is the State of Uttar Pradesh; defendant no 7 is the Deputy Commissioner of Faizabad; defendant no 8 is the Additional City Magistrate, Faizabad; defendant no 9 is the Superintendent of Police, Faizabad; defendant no 10 is the Sunni Central Waqf Board and defendant no 11 is the Nirmohi Akhara.
The case of the plaintiff in Suit 1 is that, as a resident of Ayodhya, he was worshipping the idol of Lord Ram and Charan Paduka (foot impressions) “in that place of Janambhumi”. The boundaries of the ‘disputed place’ as described in the plaint are as follows:
“Disputed place:
East: Store and Chabutra of Ram Janam Bhumi West: Parti
North: Sita Rasoi South: Parti.”
The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when the employees of the government are alleged to have unlawfully prevented the plaintiff “from going inside the place” and exercising his right of worship. It was alleged that the “State” adopted this action at the behest of the Muslim residents represented by defendant nos 1 to 5, as a result of which the Hindus were stated to been deprived of their “legitimate right of worship”. The plaintiff apprehended that the idols, including the idol of Lord Ram, would be removed. These actions were alleged to constitute a “direct attack on the right and title of the plaintiff” and were stated to be an “oppressive act”, contrary to law.
35. Denying the allegations contained in the plaint, defendant nos 1 to 5 stated in their written statements that:
(i) The property in respect of which the case has been instituted is not Janmabhumi but a mosque constructed by Emperor Babur. The mosque was built in 1528 on the instructions of Emperor Babur by Mir Baqi, who was the Commander of Babur’s forces, following the conquest of the sub- continent by the Mughal emperor;
(ii) The mosque was dedicated as a waqf for Muslims, who have a right to worship there. Emperor Babur laid out annual grants for the maintenance and expenditure of the mosque, which were continued and enhanced by the Nawab of Awadh and the British Government;
(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant Raghubar Das only in respect of the Ramchabutra and hence the claim that the entire building represented the Janmasthan was baseless. As a consequence of the dismissal of the Suit on 24 December 1885, “the case respecting the Chabutra was not entertained”;
(iv) The Chief Commissioner Waqf appointed under the U.P. Muslim Waqf Act 1936 had held the mosque to be a Sunni Waqf;
(v) Muslims have always been in possession of the mosque. This position began in 1528 and continued thereafter, and consequently, “Muslims are in possession of that property … by way of an adverse possession”;
(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which point there were no idols under the central dome. If any person had placed any idol inside the mosque with a mala fide intent, “the degradation of the mosque is evident and the accused persons are liable to be prosecuted”;
(vii) Any attempt of the plaintiff or any other person to enter the mosque to offer worship or for darshan would violate the law. Proceedings under Section 145 of the CrPC 1898 had been initiated; and
(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is without basis as there exists, for quite long, another temple with idols of Lord Ram and others, which is the actual place of the Janmasthan of Lord Ram.
A written statement was filed by the defendant no 6, the State, submitting that:
(i) The property in suit known as Babri Masjid has been used as a mosque for the purpose of worship by Muslims for a long period and has not been used as a temple of Lord Ram;
(ii) On the night of 22 December 1949, the idols of Lord Ram were surreptitiously placed inside the mosque imperilling public peace and tranquillity. On 23 December 1949, the City Magistrate passed an order under Section 144 of CrPC 1898 which was followed by an order of the same date passed by the Additional City Magistrate under Section 145 attaching the disputed property. These orders were passed to maintain public peace; and
(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal Board, Faizabad-cum-Ayodhya as a receiver of the property.
Similar written statements were filed by defendant no 8, the Additional City Magistrate and defendant no 9, the Superintendent of Police.
Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
(i) The building in dispute is not the Janmasthan of Lord Ram and no idols were ever installed in it;
(ii) The property in the suit was a mosque known as the Babri mosque constructed during the regime of Emperor Babur who had laid out annual grants for its maintenance and expenditure and they were continued and enhanced by the Nawab of Awadh and the British Government;
(iii) On the night of 22-23 December 1949, the idols were surreptitiously brought into the mosque;
(iv) The Muslims alone had remained in possession of the mosque from 1528 up to the date of the attachment of the mosque under Section 145 on 29 December 1949. They had regularly offered prayers up to 21 December 1949 and Friday prayers up to 16 December 1949;
(v) The mosque had the character of a waqf and its ownership vested in God;
(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi of Lord Ram as the claim in the Suit of 1885 instituted by Mahant Raghubar Das (described to be the plaintiff’s predecessor) had been confined only to the Ramchabutra measuring seventeen by twenty-one feet outside the mosque; and
(vii) There already existed a Ram Janmasthan Mandir, a short distance away from Babri Masjid.
In the plaintiff’s replication to the written statement of defendant nos 1 to 5, it was averred that the disputed site has never been used as a mosque since 1934. It was further stated that it was “common knowledge” that Hindus have been in continuous possession by virtue of which the claim of the defendants has ceased.
Suit 3 – OOS no 3 of 1989 (Regular Suit no 26 of 1959)
36. The suit was instituted on 17 December 1959 by Nirmohi Akhara through Mahant Jagat Das seeking a decree for the removal of the receiver from the management and charge of the Janmabhumi temple and for delivering it to the plaintiff.
Defendant no 1 in Suit 3 is the receiver; defendant no 2 is the State of Uttar Pradesh; defendant no 3 is the Deputy Commissioner, Faizabad; defendant no 4 is the City Magistrate, Faizabad; defendant no 5 is the Superintendent of Police, Faizabad; defendant nos 6 to 8 are Muslim residents of Ayodhya; defendant no 9 is the Sunni Central Waqf Board and defendant no 10 is Umesh Chandra Pandey.
The cause of action is stated to have arisen on 5 January 1950 when the management and charge of the Janmabhumi temple was taken away by the City Magistrate and entrusted to the receiver. Nirmohi Akhara pleaded that:
(i) There exists in Ayodhya “since the days of yore” an ancient Math or Akhara of Ramanandi Bairagis called the Nirmohis. This is a religious establishment of a public character;
(ii) The Janmasthan, commonly known as Janmabhumi, is the birth-place of Lord Ram and belongs to and has always been managed by Nirmohi Akhara;
(iii) The Janmasthan is of ancient antiquity lying within the boundaries shown by the letters A B C D in the sketch map appended to the plaint within which stands the “temple building” marked by the letters E F G K P N M L E. The building denoted by the letters E F G H I J K L E is the main Janmabhumi temple, where the idols of Lord Ram with Lakshman, Hanuman and Saligram have been installed. The temple building has been in the possession of Nirmohi Akhara and only Hindus have been allowed to enter the temple and make offerings such as money, sweets, flowers and fruits. Nirmohi Akhara has been receiving these offerings through its pujaris;
(iv) Nirmohi Akhara is a Panchayati Math of the Ramanandi sect of Bairagis which is a religious denomination. The customs of Nirmohi Akhara have been reduced to writing by a registered deed dated 19 March 1949;
(v) Nirmohi Akhara owns and manages several temples;
(vi) No Mohammedan has been allowed to enter the temple building since 1934; and
(vii) Acting under the provisions of Section 145 of the CrPC 1898, the City Magistrate placed the main temple and all the articles in it under the charge of the first defendant as receiver on 5 January 1950. As a consequence, the plaintiffs have been wrongfully deprived of the management and charge of the temple.
37. In the written statement filed on behalf of defendant nos 6 to 8, Muslim residents of Ayodhya, it was stated that Babri Masjid was constructed by Emperor Babur in 1528 and has been constituted as a waqf, entitling Muslims to offer prayers. Moreover, it was submitted that:
(i) The Suit of 1885 by Raghubar Mahant Das was confined to Ramchabutra and has been dismissed by the Sub-Judge, Faizabad;
(ii) The property of the mosque was constituted as a waqf under the U.P. Muslim Waqf Act 1936;
(iii) Muslims have been in continuous possession of the mosque since 1528 as a consequence of which all the rights of the plaintiffs have been extinguished;
(iv) On the eastern and northern sides of the mosque, there are Muslim graves;
(v) Namaz was continuously offered in the property until 16 December 1949 and the character of the mosque will not stand altered if an idol has been installed surreptitiously; and
(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.
39. In the written statement filed by Gopal Singh Visharad, the first defendant (who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in possession of the mosque, it ceased in 1934. The Hindus claim to be in possession after 1934 and their possession is stated to have ripened into adverse possession. According to the written statement, no prayers were offered in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said to represent the entire Hindu community. Hindu puja is stated to be continuing inside the structure, which is described as a temple since 1934 and admittedly since January 1950, following the order of the City Magistrate. In an additional written statement, a plea has been taken that the UP Muslim Waqf Act 1936 is ultra vires. It has been averred that any determination under the Act cannot operate to decide a question of title against non-Muslims. In a subsequent written statement, it has been stated that Hindus have worshipped the site of the Janmabhumi since time immemorial; the Muslims were never in possession of 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:
| 1. Plaintiffs (Suit-1) – | Exhibits No. 1 to 34 | (Total 34) |
| 2. Plaintiffs (Suit-3) – | Exhibits No. 1 to 21 | (Total 21) |
| 3. Plaintiffs (Suit-4) – | Exhibits No. 1 to 128 | (Total 128) |
| 4. Plaintiffs (Suit-5) – | Exhibits No. 1 to 132 | (Total 132) |
| 5. Defendants (Suit-1) – | Exhibits No. A1 to A72 | (Total 73) |
| 6. Defendants (Suit-4) – | (i) Exhibits No. A1 to A16 | (Total 16) |
| (ii) Exhibits No. M1 to M7 | (Total 7) | |
| (iii) Exhibits No. B1 to B16 | (Total 16) | |
| (iv) Exhibits No. J1 to J31 | (Total 32) | |
| (v) Exhibits No. T1-T6 | (Total 6) | |
| (vi) Exhibit No. V1 | (Total 1) | |
| (vii) Exhibits No. Q1 to Q6 | (Total 6) | |
| 7. Defendants (Suit-5) – | (i) Exhibits No. C1 to C11 | (Total 11) |
| (ii) Exhibits No. D1 to D38 | (Total 38) | |
| (iii) Exhibits No. E1 to E8 | (Total 12) | |
| Grand Total – | 533 |
These exhibits broadly comprise of :
(i) Religious texts;
(ii) Travelogues;
(iii) Gazetteers;
(iv) Translations of inscriptions on pillars;
(v) Reports of Archaeological excavation;
(vi) Photographs prior to demolition; and
(vii) Details of artefacts found at the disputed site.
The judgment of Justice Sudhir Agarwal in the High Court tabulates the oral evidence in the four suits under the following heads:
“274. (1) Oral Depositions : Parties to these suits produced 88 witnesses, who deposed on one or the other subject.
Broadly, these witnesses are categorized as under:
275. (a) Witnesses produced in Suit-4 by Plaintiff :
(I) Witness of facts :
1. P.W 1 Sri Mohd. Hashim
2. PW 2 Hazi Mahboob Ahmed
3. PW 3 Farooq Ahmad
4. PW 4 Mohd. Yasin
5. PW 5 Sri Abdul Rehman
6. PW 6 Mohd. Yunus Siddiqui
7. PW 7 Sri Hashmat Ullah Ansari
8. PW 8 Sri Abdul Aziz
9. PW 9 Syeed Akhlak Ahmad
10. PW 10 Mohd. Idris
11. PW11 Mohd. Burhanuddin
12. PW 12 Ram Shanker Upadhyay
13. PW 13 Suresh Chandra Mishra
14. PW 14 Jalil Ahmad
15. PW 21 Dr. M. Hashim Qidwai
16. PW 23 Mohd Qasim Ansari
17. PW 25 Mohd. Sibte Naqvi
(II) Expert Witnesses (Historians)
18. PW 15 Sushil Srivastava
19. PW 18 Prof. Suvira Jaiswal
20. PW 20 Prof. Shirin Musavi
(III) Expert Witnesses (Archaeologists)
21. PW 16 Prof. Suraj Bhan
22. PW 24 Prof. D. Mandal
23. PW 27 Dr. Shereen F. Ratnagar
24. PW 28 Dr. Sita Ram Roy
25. PW 29 Dr. Jaya Menon
26. PW 30 Dr. R. C. Thakran
27. PW 31 Dr. Ashok Datta
28. PW 32 Dr. Supriya Verma
(IV) Private Commissioner
29. PW 17 Zafar Ali Siddiqui
(V) Expert Witnesses (Religious matters)
30. PW 19 Maulana Atiq Ahmad
31. PW 22 Mohd. Khalid Naqui
32. PW 26 Kalbe Jawed
276. (b) Witnesses produced in Suit-5 by Plaintiff :
(I) Witness of facts :
1. OPW 1 Mahant Paramhans Ram Chandra Das
2. OPW 2 Sri D.N. Agarwal
3. OPW 4 Harihar Prasad Tewari
4. OPW 5 Ram Nath Mishra alias Banarsi Panda
5. OPW 6 Hausila Prasad Tripathit
6. OPW 7 Sri Ram Surat Tewari
7. OPW 8 Ashok Chandra Chatterjee
8. OPW 12 Kaushal Kishor Misra
9. OPW 13 Narad Saran
(II) Expert Witnesses (Archaeologists)
10. OPW 3 Dr. S.P. Gupta
11. OPW 14 Dr. Rakesh Tewari
12. OPW 17 Dr. R. Nagaswami
13. OPW 18 Sri Arun Kumar Sharma
14. OPW 19 Sri Rakesh Dutta Trivedi
(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 :
1. DW 3/1 Mahant Bhaskar Das
2. DW 3/2 Sri Raja Ram Pandey
3. DW 3/3 Sri Satya Narain Tripathi
4. DW 3/4 Mahant Shiv Saran Das
5. DW 3/5 Sri Raghunath Prasad Pandey
6. DW 3/6 Sri Sita Ram Yadav
7. DW 3/7 Mahant Ramji Das
8. DW 3/8 Pt. Shyam Sundar Mishra @ Barkau Mahraj
9. DW 3/9 Sri Ram Ashrey Yadav
10. DW 3/11 Sri Bhanu Pratap Singh
11. DW 3/12 Sri Ram Akshaibar Pandey
12. DW 3/13 Mahant Ram Subhag Shashtri
13. DW 3/15 Narendra Bahadur Singh
14. DW 3/16 Sri Shiv Bhikh Singh
15. DW 3/17 Sri Mata Badal Tewari
16. DW 3/18 Sri Acharya Mahant Bansidhar Das @ Uriya Baba
17. DW 3/19 Sri Ram Milan Singh
18. DW 3/20 Mahant Raja Ramchandr-acharya
(II) Others :
19. DW 3/10 Sri Pateshwari Dutt Pandey
20. DW 3/14 Jagad Guru Ramanandacharya Swami Haryacharya
279. (e) Witnesses produced by Defendant 2/1 in Suit-4 :
(I) Witness of facts :
1. DW 2/1-3 Mahant Ram Vilas Das Vedanti
(II) Others :
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.”
Statements under Order X Rule 2 CPC
45. During the course of the hearing of the suit, the Trial Court recorded the statements of parties and their pleaders under the provisions of Order X Rule 2 of the Code of Civil Procedure 190814 (“CPC”).
On 8 August 1962, it was stated on behalf of the Sunni Central Waqf Board that:
“the property in suit is the property dedicated to Almighty God and is a mosque for the use of the entire Muslim community at large…”
On 28 August 1963, it was stated by the Sunni Central Waqf Board that in the alternative even if the defendants had any right in the property, it stood extinguished by a lapse of time and the plaintiff (Sunni Central Waqf Board) had acquired title by adverse possession.
On 11 January 1996, the statement of Mr Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central Waqf Board was recorded to the effect that:
“That the mosque was situate on a Nazul Plot No. 583 of the Khasra of 1931 of Mohalla Kot Ramchandra known as Ramkot at Ayodhya.”
On 22 April 2009, the following statement of Mr Zafaryab Jilani, learned Senior Counsel was recorded under Order X Rule 2 of the CPC:
“For the purpose of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the second half of Nineteenth Century onwards is also not disputed. It is however, denied and disputed that Nirmohi Akhara was in existence and specially in Ayodhya in 16th Century A.D. or in 1528 A.D. and it is also denied that any idols were there in the building of the Babri Masjid up to 22nd December, 1949.”
Similar statements were made on behalf of other counsel representing the Muslim parties. There is, in other words, no dispute before this Court in regard to the faith and belief of the Hindus that the birth of Lord Ram is ascribed to have taken place at Ayodhya, as described in Valmiki’s Ramayan. What is being disputed is whether the disputed site below the central dome of the Babri Masjid is the place of birth of Lord Ram. The Muslim parties have expressly denied the existence of a Ram Janmabhumi temple at the site of Babri Masjid. With this background, it becomes necessary to advert to the salient aspects of the documentary evidence which has emerged on the record.
D. The aftermath of 1856-7
D.1 Response to the wall
46. In 1856-7, a communal riot took place. Historical accounts indicate that the conflagration had its focus at Hanumangarhi and the Babri mosque. Some of those accounts indicate that prior to the incident, Muslims and Hindus alike had access to the area of the mosque for the purpose of worship. The incident was proximate in time with the transfer of power to the colonial government. The incident led to the setting up of a railing made of a grill-brick wall outside the mosque. The object of this would have been to maintain peace and due order at the site. The railing provided the genesis of the bifurcation of the inner courtyard (in which the structure of the mosque was situated) and the outer courtyard comprising the remaining area. The setting up of the railing was not a determination of proprietary rights over the inner and outer courtyards, the measure having been adopted to maintain peace between the two communities. This section of the judgment traces the documentary evidence on the aftermath of 1856-7 at the disputed site, the continuing skirmishes in the inner and outer courtyards, the proceedings between various disputants and the claim to worship by the Hindus in the inner courtyard. The evidence is as follows:
(i) On 28 November 1858 a report was submitted by Sheetal Dubey who was the Thanedar, Oudh15. The report spoke of an incident during which Hawan and Puja was organised inside the mosque by a Nihang Sikh who had erected a religious symbol. The report states:
“Today Mr. Nihang Singh Faqir Khalsa resident of Punjab, organized Hawan and Puja of Guru Gobind Singh and erected a symbol of Sri Bhagwan, within the premises of the Masjid. At the time of pitching the symbol, 25 sikhs were posted there for security. Deemed necessary so requested.
May your regime progress. Pleasure.”
(ii) An application was submitted by Syed Mohammad Khateeb, Muazzim of the Masjid16. The subject of the application was the report of the Thanedar Oudh. The application stated that ‘Mahant Nihang Singh Faqir’ was creating a riot on “Janam Sthan Masjid situated in Oudh”. The application stated:
“Near Mehrab and Mimber, he has constructed, inside the case, an earth Chabutra measuring about four fingers by filling it with Kankars (concrete). Lighting arrangement has been made…and after raising the height of Chabutra about 11/4 yards a picture of idol has been placed and after digging a pit near it, the Munder wall has been made Pucca. Fire has been lit there for light and Puja and Hom is continuing there. In whole of this Masjid ‘Ram Ram’ has been written with coal. Kindly, do justice. It is an open tyranny and high handedness of the Hindus on Muslims and not that of Hindus. Previously the symbol of Janamsthan had been there for hundreds of years and Hindus did Puja. Because of conspiracy of Shiv Ghulam Thandedar Oudh Government, the Bairagis constructed overnight a Chabutra up to height of one ‘Balisht’ until the orders of injunction were issued. At that time the Deputy Commissioner suspended the Thanedar and fine was imposed on Bairagis. Now the Chabootra has been raised to about 11/4 yards. Thus sheer high-handedness has been proved. Therefore, it is requested that Murtaza Khan Kotwal City may be ordered that he himself visit the spot and inspect the new constructions and get them demolished (sic) and oust the Hindus from there; the symbol and the idol may be removed from there and writing on the walls be washed.”
The contents of the application indicate that by this time a platform had been constructed inside the mosque in which an idol had been placed. A fire had been lit and arrangements were made for puja. Evidently, the railing did not prevent access to the inner courtyard or to the precincts of the mosque.
(iii) A report was submitted by the Thanedar on 1 December 1858 “for summoning Nihang Singh Faqir who is residing within the Masjid Janam Sthan17. The report stated that he had taken a summons “to the said Faqir” and he was admonished, in spite of which he continued to insist that “every place belonged to Nirankar”;
(iv) A report was submitted by the Thanedar on 6 December 1858 indicating service of the summons18;
(v) There was an application dated 9 April 1860 of Mohammadi Shah, resident of Mohalla Ramkot seeking a postponement of the grant of a lease in respect of village Ramkot until a decision was taken on whether the land is Nazul land19;
(vi) On 5 November 1860, an application was made to the Deputy Commissioner for the removal of the Chabutra which had been constructed “within Babri Masjid Oudh”20. The grievance in the application and the relief sought is indicated in this extract:
“Besides, when the Moazzin recites Azaan, the opposite party begins to blow conch (Shankh/Naqoos). This has never happened before. I would pray that your honour is the Judge for both the parties. The opposite party should be restrained from his unlawful act and after proper inquiry the newly constructed Chabootra which had never existed, may kindly be demolished and a bond be got executed from the opposite party to the effect that he will not unlawfully and illegally interfere in the Masjid property and will not blow conch (Shankh/Naqoos) at the time of Azaan.”
(vii) The application would indicate that the namaz was at the stage being performed in the mosque. The Azaan of the Moazzin was met with the blowing of conch shells by the Hindus. A contentious situation was arising. Eventually, the Nihang Sikh was evicted from the site and a record was maintained;
(viii) In or about 1877, another door to the outer courtyard was allowed to be opened by the administration on the northern site, in addition to the existing door on the east. The Deputy Commissioner declined to entertain a complaint against the opening made in the wall of the Janmasthan21. The order of the Deputy Commissioner records:
“A doorway has recently been opened in the wall of the Janum-Asthan not at all in Baber’s mosque, but in the wall which in front is divided from the mosque by a railing. This opening was necessary to give a separate route on fair days to visitors to the Janum-Asthan. There was one opening only, so the crush (sic rush) was very great and life was endangered. I marked out the spot for the opening myself so there is no need to depute any Europe officer. This petition is merely an attempt to annoy the Hindu by making it dependent on the pleasure of the mosque people to open or close the 2nd door in which the Mohammedans can have no interest.”
(Emphasis supplied)
This was accepted by the Commissioner while dismissing an appeal on 13 December 1877 holding:
“As the door in question has opened by the Deputy Commissioner in the interests of the public safety, I decline to interfere. Appeal dismissed.”
(ix) Justice Agarwal has alluded to the above documentary evidence including in particular, the application of the Moazzin dated 30 November 1858.22 The application complained of the construction of a Chabutra near the mihrab and mimbar on which a picture of an idol had been placed. The complaint refers to the worship which was being conducted by lighting a fire and conducting a puja. The letter notes that previously the symbol of the Janmasthan was in existence for hundreds of years and Hindus had performed puja. Justice Agarwal has noted that the genuineness of this document has not been disputed by the plaintiff in the suit or of it having been written by a person whose identity was not disputed. The learned Judge held that the document contains admissions which prove that Hindus had continuously offered prayers inside the disputed building including the inner courtyard and at Ramchabutra and Sita Rasoi in the outer courtyard. However, during the course of the proceedings Mr Mohd. Nizamuddin Pasha, learned counsel for the plaintiffs in Suit 4 has challenged the translation of the exhibit;
(x) Mohd Asghar instituted Suit 374/943 of 188223 against Raghubar Das, Mahant, Nirmohi Akhara claiming rent for use of the Chabutra and Takht near the door of Babri Masjid and for organizing the Kartik Mela on the occasion of Ram Navami in 1288 Fasli. The Sub-Judge, Faizabad dismissed the suit on 18 June 1883;
(xi) The construction of a railing in 1856-7 to provide a measure of separation between the inner and outer courtyards led to the construction of a platform by the Hindus in close proximity to the railing, in the outer courtyard. The platform, called Ramchabutra, became a place of worship for the Hindus;
(xii) On 29 January 1885, a suit was instituted in the court of the Munsif, Faizabad by Mahant Raghubar Das, describing himself as “Mahant Janmasthan at Ayodhya”. The sole defendant was the Secretary of State for India in Council24. The relief which was sought in the suit was an injunction restraining the defendant from obstructing the construction of a temple over the Chabutra admeasuring 17×21 feet. The plaint stated that the Janmasthan at Ayodhya is a place of religious importance and the plaintiff is a Mahant of the place. Charan Paduka was affixed on the Chabutra and a small temple built next to it was worshipped. The plaintiff stated that in April 1883, the Deputy Commissioner, Faizabad acting on the objection of the Muslims, obstructed the construction of a temple. A map was appended with the plaint showing the three domed structure described as “Masjid” within a boundary railing. The map appended to the plaint indicated two entrances to the outer courtyard on the Northern and Eastern sides. Mohd Asghar as Mutawalli of the mosque was impleaded as second defendant to the suit. He filed a written statement on 22 December 1885 stating that Babur had created a waqf by constructing a Masjid and above the door, the word ‘Allah’ was inscribed. Babur was also stated to have declared a grant for its maintenance. Mohd Asghar pleaded that no permission had been granted for the use of the land in the compound of the mosque. It was averred that there was no Chabutra from the date of the construction of the mosque until 1856 and it was only constructed in 1857. The prayer for the construction of a temple was opposed; and
The above suit was dismissed by the Sub-Judge on 24 December 1885. The Trial Court held that:
(a) The Chabutra was in possession of the plaintiff, which had not been disputed by the second defendant;
(b) The area was divided by a railing wall separating the domed structure from the outer courtyard where the Chabutra existed to prevent any dispute between Hindus and Muslims;
(c) The erection of a railing was necessitated due to the riot in 1885 between Hindus and Muslims;
(d) The divide was made to so that Muslims could offer prayers inside and the Hindus outside;
(e) Since the area to visit the mosque and the temple was the same but the place where the Hindus offered worship was in their possession, there could be no dispute about their ownership; and
(f) Though the person who was the owner and in possession is entitled to make construction, grant of permission to construct a temple in such close proximity to a mosque may lead to a serious dispute between Hindus and Muslims and create a law and order problem. The suit was dismissed on this ground.
Against the decree of the Trial Court, an appeal was filed by Mahant Raghubar Das while cross-objections were filed by Mohd Asghar. The District Judge by a judgment dated 18/26 March 1886 dismissed the appeal of the plaintiff. The District Judge held that it was “most unfortunate” that the Masjid should have been built on the land especially held sacred by the Hindus but since the construction had been made 358 years earlier, it was too late in the day to reverse the process. The suit was dismissed on the ground that there was no injury which could give a right of action to the plaintiff. On the cross-objections of Mohd Asghar, the District Judge held that the finding of the Trial Court that the plaintiff was the owner of the land in dispute was redundant and should be expunged.
The second appeal was dismissed by the Judicial Commissioner of Oudh on 1 November 1886 on the ground that (i) there was nothing on record to show that the plaintiff was the proprietor of the land in question; and (ii) it was inappropriate to allow the parties to disturb the status quo especially when a mosque had been in existence for nearly 350 years. The Judicial Commissioner held:
“The matter is simply that the Hindus of Ajodhya want to create a new temple or marble baldacchino over the supposed holy spot in Ajodhya said to be the birthplace of Shri Ram Chandar. Now this spot is situated within the precinct of the grounds surrounding a mosque erected some 350 years ago owing to the bigotry and tyranny of the Emperor Babur, who purposely chose this holy spot according to Hindu legend as the site of his mosque.
The Hindus seem to have got very limited rights of access to certain spots within the precincts adjoining the mosque and they have for a series of years been persistently trying to increase those rights and to erect buildings on two spots in the enclosure:
(a) Sita ki Rasoi
(b) Ram Chandar ki Janam Bhumi.
The Executive authorities have persistently refused these encroachments and absolutely forbid any alteration of the ‘status quo’.
I think this is a very wise and proper procedure on their part and I am further of opinion that the Civil Courts have properly dismissed the Plaintiff’s claim.”
The issue as to whether the findings in the suit will operate as res judicata will be dealt with in a subsequent segment of the judgment.
The conflagration which took place in 1855-56 resulted in a brick wall and railing being put up outside the mosque. This divided the courtyard into an inner portion which lay within the railing and the outer portion beyond it. Situated in the outer portion were places worshipped by the Hindus, among them being Ramchabutra and Sita Rasoi. Two entrance gates (on the north and east) provided access to the outer courtyard. Entry to the mosque was through the access points to the outer courtyard.
D.2 Period between 1934-1949
47. In 1934, there was another communal incident in the course of which damage was sustained to the mosque which was subsequently restored. The documentary evidence which has been brought on record shows that :
(i) The colonial administration sanctioned the work of repair and renovation of the damaged structure of the mosque;
(ii) A fine was imposed on the Hindus for the damage which was caused to the mosque;
(iii) The work of restoration was entrusted to a Muslim contractor with whom there was an exchange of correspondence over the payment of unpaid bills and for verification of work done;
(iv) This was a claim by the Pesh Imam of the mosque over the payment of the arrears of salary with the Mutawalli; and
(v) Upon the work of repair, the administration permitted arrangements to be made for commencement of namaz.
(In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab Jilani have relied upon this documentary evidence as indicative of the status of the mosque and of the performance of namaz).
48. A series of incidents took place between March and December 1949. On 19 March 1949, a deed was executed by the Panches of Nirmohi Akhara purportedly to reduce into writing the customs of the Akhara. This document25 included the following provision in regard to “the temple of Janmabhoomi” of which the management was claimed to vest in the Akhara:
“Temple of Janam Bhoomi is situate in Mohalla Ram Ghat of City, Ayodhya which is under the Baithak of this Akhara and its whole management is trust upon to this Akhara. It stands in name of Mahant of Akhara as Mahant and Manager. This is the best well reputed, moorty of worship temple of Ayodhya. Being the birthplace of Lord Rama, it is the main temple of Ayodhya. The deity of Shri Ram Lalaji is installed there and there are other deities also.”
49. During the course of his arguments, Dr Rajeev Dhavan, learned Senior Counsel for the plaintiffs in Suit 4 urged that the communications exchanged between the officials of the State of Uttar Pradesh demonstrate that they had prior information about a carefully planned course of action of placing idols inside the mosque which led to the desecration of the mosque. Despite this, it has been submitted, the administration took no steps to prevent such an incident from taking place. Hence, in this backdrop, it is necessary to set out the events that led to the incident which took place on 22-23 December 1949:
(i) On 12 November 1949, a police picket was posted in the area;
(ii) On 29 November 1949, Kripal Singh who was the Superintendent of Police at Faizabad addressed a letter to K K Nayar, the Deputy Commissioner and District Magistrate, Faizabad stating:
“I visited the premises of Babri mosque and the Janm Asthan in Ajodhya this evening. I noticed that several “Hawan Kunds” have been constructed all around the mosque. Some of them have been built on old constructions already existing there.”
…
I found bricks and lime also lying near the Janm Asthan. They have a proposal to construct a very big Havan Kund where Kirtan and Yagna on Puranmashi will be performed on a very large scale. Several thousand Hindus, Bairagis and Sadhus from outside will also participate. They also intend to continue the present Kirtan till Puranmashi. The plan appears to be to surround the mosque in such a way that entry for the Muslims will be very difficult and ultimately they might be forced to abandon the mosque. There is a strong rumour, that on puranmashi the Hindus will try to force entry into the mosque with the object of installing a deity.”
(Emphasis supplied)
(iii) On 10 December 1949, Mohd Ibrahim who was the Waqf Inspector submitted a report to the secretary of the Masjid stating that Muslims were being prevented from offering namaz Isha (the namaz at night) at the mosque, due to the fear of Hindus and Sikhs and there was an apprehension of danger to the mosque:
“On investigation in Faizabad city it was revealed that because of the fear of Hindus and Sikhs no one goes into the Masjid to pray Namaz Isha. If by chance any passenger stays in the Masjid he is being threatened and teased by the Hindus … (sic)….. There are number of Numberdars … (sic)….. if any Muslim into the Masjid, he is harassed and abused. I made on the spot enquires which reveal that the said allegations are correct. Local people stated that the Masjid is in great danger because of Hindus … (sic)….. Before they try to damage the wall of the Masjid, it seems proper the Deputy Commissioner Faizabad may be accordingly informed , so that no Muslim, going into the Masjid may be teased. The Masjid is a Shahi monument and it should be preserved.”
(Emphasis supplied)
(iv) On 16 December 1949, K K Nayyar addressed a communication to Govind Narayan who was Home Secretary to the Government of Uttar Pradesh, stating that there was a “magnificent temple” at the site which had been constructed by Vikramaditya, which was demolished by Babur for the construction of a mosque, known as Babri Masjid. The letter stated that building material of the temple was used in the construction of the mosque and that a long time had elapsed before Hindus were again restored to the possession of a site therein, at the corner of two walls. The letter recorded a reference to recent happenings and stated:
“Some time this year probably in October or November some grave-mounds were partially destroyed apparently by Bairagis who very keenly resent Muslim associations with this shrine. On 12.11.49 a police picket was posted at this place. The picket still continues in augmented strength.
There were since other attempts to destroy grave-mounds. Four persons were caught and cases are proceeding against them but for quite some time now there have been no attempts.
Muslims, mostly of Faizabad have been exaggerating these happenings and giving currency to the report that graves are being demolished systematically on a large scale. This is an entirely false canard inspired apparently by a desire to prevent Hindus from securing in this area possession or rights of a larger character than have so far been enjoyed. Muslim anxiety on this score was heightened by the recent Navami Ramayan Path, a devotional reading of Ramayan by thousands of Hindus for nine days at a stretch. This period covered a Friday on which Muslims who went to say their prayers at the mosque were escorted to and from safely by the Police.
As far as I have been able to understand the situation the Muslims of Ayodhya proper are far from agitated over this issue with the exception of one Anisur Rahman who frequently sends frantic messages giving the impression that the Babri Masjid and graves are in imminent danger of demolition.”
Nayyar saw no apprehension of danger to the mosque in spite of the letter of the Superintendent of Police which contained specific reference to the plans which were afoot to enter the mosque and install idols within its precincts;
(v) On the night between 22-23 December 1949, Hindu idols were surreptitiously placed inside Babri Masjid by a group of 50-60 persons. An FIR was lodged, complaining of the installation of idols inside the inner courtyard of the disputed site. The FIR, complaining of offences under Sections 147, 295, 448 of the Indian Penal Code was lodged at 7:00 pm on 23 December 1949 by Ram Deo Dubey, Sub-Inspector in charge. The FIR recorded that on information received from Mata Prasad, Constable No. 7, the complainant had arrived at the disputed site at 7:00 am and learned that a crowd of 50 or 60 persons had broken the locks placed on the compound of the mosque and had placed the idols inside, besides inscribing the names of Hindu deities on the walls. Thereafter, 5000 people had gathered to perform Kirtan. It was alleged that Abhay Ram Das, Ram Shukul Das, Sheo Darshan Dass and about 50 or 60 persons had committed an act of trespass by entering the mosque and installing idols, thereby desecrating the mosque.
The judgment of Justice S U Khan contains a reference to the report/diary of the District Magistrate stating that on 23 December 1949, the crowd was controlled by allowing two or three persons to offer bhog;
(vi) K K Nayyar opposed the direction of the state government to remove the idols, fearing a loss of life. On 25 December 1949, K K Nayar recorded that puja and bhog was offered as usual. In spite of the directions to remove the idols, K K Nayar declined to do so stating that “if Government still insisted that removal should be carried out in the face of these facts, I would request to replace me by another officer”;
(vii) K K Nayar addressed two letters on 26 and 27 December 1949 to Bhagwan Sahai, Chief Secretary, Government of U.P. stating that the incident that took place on 23 December 1949 was “unpredictable and irreversible” on the basis of the above narration of incidents. On the basis of the above documentary material, Dr Dhavan, learned Senior Counsel submitted that:
(a) There was a mosque at the disputed site;
(b) The state authorities acknowledged the structure as a mosque and consistently referred to it as a mosque in their internal communications;
(c) From the report of the Waqf commissioner dated 10 December 1949, the following points emerge:
“(a) The temple of the Hindus was outside the courtyard Namaz was being read in the Babri Mosque as it refers to the Muslim worshippers being harassed by the members of the Hindu Community;”
(d) The state authorities acknowledged the threat posed by the members of the Hindu Community to the mosque and to the people going to pray;
(e) The state authorities could foresee the potential desecration / attack to the mosque and the worshippers, but took no steps to avert such an incident;
(f) From the internal communication of the officials of the state, it is clear that the desecration of the mosque was planned as the Superintendent of Police had informed the Deputy Commissioner of
(g) the plan of the Hindus to force entry into the mosque with the intention of installing an idol;
(h) The desecration of December 22-23, 1949 was a planned attack, the seeds for which were sown with the ‘customs deed’ dated March 19, 1949 when the temple of Ram Janmabhumi was for the first time mentioned; and
(i) Officials of the state refused to thereafter remove the surreptitiously installed idols despite orders from the State Government, further confirming their alliance with the miscreants who desecrated the mosque.
E. Proceedings under Section 145
50. On 29 December 1949, a preliminary order was issued under Section 145 of the CrPC 1898 by the Additional City Magistrate, Faizabad cum Ayodhya. Simultaneously, treating the situation as involving an emergency, an order of attachment was issued and the disputed site was directed to be entrusted to Sri Priya Datt Ram who was the Chairman of the Municipal Board. The order dated 29 December 1949 is extracted below:
“Whereas I, Markendeya Singh, Magistrate First Class and Additional City Magistrate, Faizabad-cum-Ayodhya, am fully satisfied from information received from Police sources and from other credible sources that a dispute between Hindus and Muslims in Ayodhya over the question of rights of proprietorship and worship in the building claimed variously as Babari Masjid and Janam Bhoomi Mandir, situate at Mohalla Ram Kot within the local limits of my jurisdiction, is likely to lead to a breach of the peace.
I hereby direct the parties described below namely:
(1) Muslims who are bona fide residents of Ayodhya or who claim rights of proprietorship or worship in the property in dispute;
(2) Hindus who are bona fide residents of Ahodhya or who claim rights of proprietorship or worship in the property in dispute;
to appear before me on 17th day of January at 11 A.M. at Ayodhya Police Station in person or by pleader and put in written statements of their respective claims with regard to the fact of actual possession of the subject of dispute.
And the case being one of the emergency I hereby attach the said buildings pending decision.
The attachment shall be carried out immediately by Station Officer, Ayodhya Police Station, who shall then put the attached properties in the charge of Sri Priya Datt Ram, Chairman Municipal Board, Faizabad-cum-Ayodhya who shall thereafter be the receiver thereof and shall arrange for the care of the property in dispute.
The receiver shall submit for approval a scheme for management of the property in dispute during attachment, and the cost of management shall be defrayed by the parties to this dispute in such proportions as may be fixed from time to time.
This order shall, in the absence of information regarding the actual names and addresses of the parties to dispute to be served by publication in:
1. The English Daily, “The Leader” Allahabad,
2. The Urdu Weekly “Akhtar” Faizabad
3. The Hindi Weekly “Virakta” Ayodhya.
Copies of this order shall also be affixed to the walls of the buildings in dispute and to the notice board at Ayodhya Police Station.
Given under my hand and the seal of the court on this the twenty ninth day of December, 1949 at Ayodhya.”
51. The receiver took charge on 5 January 1950 and made an inventory of the properties which had been attached. The last namaz which was offered in the mosque was on 16 December 1949. The receiver made an inventory of the following articles:
“1. Idols of Thakur Ji
1-(a) Two idols of Sri Ram Lala Ji, one big and another small.
(b) Six idols of Sri Shaligram Ji.
2 . A two feet high silver throne.
3. One idol of Hanuman Ji.
4 (a) One glass of German Silver.
(b) One small glass of silver.
(c) One big glass of silver
5. One Garun bell.
6. One incensory.
7. One Arti vessel.
8. One lamp stand
9. “Husra” and one sandal.
10. Two big photographs of Ram Janki.
11. Four flower pots.
12. One (small) photograph of Badrinath Ji.
13. One small photograph of Ramchandra Ji.
14. Ornaments of Deity
Two caps of Ramlala and one cap of Hanuman Ji. And eight robes of Deity.
15. Building- Three domed building with Courtyard and boundary wall, which is bounded as under.
North-Premises comprising Chhathi Courtyard and Nirmohi Akhara.
South-Vacant land and “Parikrama” (circumambulation path) East-‘Chabutara’ (platform) of Ram temple under possession of Nirmohi Akhara, and Courtyard of temple premises.
West-Parikrama’ (circumambulation path)
16. Small brass glass
17. One bowl of “Phool” (an alloy) for sandal.
18. “Panch Pas” and one brass plate.
19. One small brass plate.
20. One small wooden board.”
In the course of the proceedings of the civil suit before the Trial Court at Faizabad, the pleader, Shiv Shankar Lal, was appointed as a Commissioner to prepare a site plan of the locality and building. The Commissioner submitted a report on 25 May 1950, annexing two site plans which were numbered as Plan nos 1 and 2 which have been referred above in the earlier part of the judgment.
52. The salient features noticed in the Commissioner’s report are:
(i) The existence of two entry gates to the disputed site, described as Hanumat Dwar and Singh Dwar;
(ii) The presence of two black Kasauti stone pillars at the entry point of Hanumat Dwar containing engraved images of ‘Jai’ and ‘Vijai’;
(iii) The images of a ‘Garud’ flanked by lions on either side above Singh Dwar;
(iv) An engraved stone image of a boar (‘varah’) on the outer wall, to the south of Hanumat Dwar;
(v) Ramchabutra admeasuring 17 X 21 feet containing a small temple with idols of Lord Ram and Janki;
(vi) On the south-eastern corner, a semi-circular platform attached to the neem-pipal tree containing idols of Panchmukhi Mahadev, Parvati, Ganesh and Nandi;
(vii) The platform called Sita Rasoi containing the foot prints of Lord Ram, Lakshman, Bharat and Shatrughan;
(viii) The railing separating the inner and outer courtyards;
(ix) The presence of twelve black Kasauti stone pillars supporting the three arches of the mosque which contained carvings of:
(a) Lotus flowers;
(b) Tandava nritya;
(c) Lord Hanuman; and
(d) Lord Krishna.
(Carvings on the other pillars had been obliterated);
(x) The idol of infant Lord Ram placed on a platform with two steps in the central portion of the domed structure;
(xi) A parikrama around the disputed structure; and
(xii) The existence of structures surrounding the disputed site including huts of sadhus/bairagis and the wall called ‘sita-koop’.
F. Points for determination
The following points for determination arise in these appeals:
(i) Whether Suits 3, 4 and 5 or any of them are barred by limitation
(ii) Whether the decision in Suit 81/280 of 1885 will operate as res judicata in Suits 1, 3 and 5;
(iii) (a) Whether a Hindu temple existed at the disputed site;
(b) Whether the temple was demolished by Babur or at his behest by his commander Mir Baqi in 1528 for the construction of the Babri Masjid;
(c) Whether the mosque was constructed on the remains of and by using the materials of the temple; and
(d) What, if any are the legal consequences arising out of the determination on (a)(b) and (c) above;
(iv) Whether the suit property is according to the faith and belief of the Hindus since time immemorial the birth-place of Lord Ram;
(v) (a) Whether the first and the second plaintiffs in Suit 5 are juristic persons;
(b) Whether the third plaintiff was entitled to represent the first and second plaintiffs as next friend;
(vi) (a) Whether Nirmohi Akhara has established its claim of being a shebait of the deity of Lord Ram in the disputed premises;
(b) If (a) is in the affirmative, whether the objection of Nirmohi Akhara to the maintainability of Suit 5 is valid;
(vii) Whether during the intervening night of 22/23 December 1949, Hindu idols were installed under the Central dome of Babri Masjid as pleaded in the plaint in Suit 4;
(viii) (a) Whether it is open to the Court to determine if the three domed structure which existed at the disputed site prior to 6 December 1992 was a mosque in accordance with Islamic tenets;
(b) If the answer to (a) is in the affirmative, whether the three domed structure at the disputed site was constructed in accordance with Islamic tenets;
(ix) (a) Whether there was a dedication of the three domed structure as a waqf at the time of its construction;
(b) In the alternative to (a) above, whether there is a waqf by public user as claimed by the plaintiffs in Suit 4;
(x) Whether the plaintiffs in Suit 4 have established in the alternative their case of adverse possession;
(xi) Whether the Muslims and or the Hindus have established the claim of worship and a possessory title over the disputed property;
(xii) Whether the plaintiffs in Suit 4 have established their title to the disputed property;
(xiii) Whether the plaintiff in Suit 5 have established their title to the disputed property;
(xiv) Whether the High Court was justified in passing a preliminary decree for a three way division of the disputed property in equal shares between the Nirmohi Akhara, the plaintiffs of Suit 4 and the plaintiffs of Suit 5;
(xv) Whether the plaintiff in Suit 1 is entitled to the reliefs as claimed in the suit; and
(xvi) What, if any, relief ought to be granted in Suits 1, 3, 4 and 5
These points will be analysed and dealt with in the course of this judgment. Before analysing the issues in the individual suits, it would be appropriate to discuss certain matters in dispute at the forefront, since they traverse the gamut of the entire case.
G. The three inscriptions
53. The case of the Sunni Central Waqf Board and other plaintiffs in Suit 4 is that in the town of Ayodhya “there exists an ancient historic mosque commonly known as Babri Masjid built by Emperor Babur more than 433 years ago, after his conquest of India and his occupation of the territories including the town of Ayodhya”. The mosque, it has been pleaded, was for the use of Muslims in general as a place of worship and for the performance of religious ceremonies. The mosque and the adjoining graveyard are stated to vest “in the Almighty” and the mosque since the time of its inscription is stated to have been used by Muslims for offering prayers. Thus, the plaintiffs have come forth with a positive case in regard to the:
(i) Existence of a mosque;
(ii) Construction of the mosque by Babur 433 years prior to the institution of the Suit in 1961;
(iii) Construction of the mosque as a place of worship and for religious ceremonies; and
(iv) Use of the mosque since its construction for the purpose of offering prayers.
54. Justice Sudhir Agarwal recorded in his judgment that it is accepted by the counsel appearing on behalf of the Sunni Central Waqf Board that the sole basis for determining the date of the construction of the mosque and correlating it to Babur consists of the inscriptions stated to have been installed on the mosque as referred to in the gazetteers and other documents. In paragraph 1435, the learned Judge observed:
“Broadly, we find and in fact it is even admitted by Sri Jilani that the sole basis for determining the period of construction of the disputed building and to co-relate it with Emperor Babar is/are the inscription(s) said to be installed in the disputed building referred to in certain Gazetteers etc.”
Now both before the High Court and during the course of the present proceedings, there has been a debate on whether the texts of the alleged inscriptions on the mosque have been proved. Mr P N Mishra, learned Counsel appearing on behalf of the Akhil Bharatiya Shri Ram Janmabhumi Punrudhar Samiti has questioned the authenticity of the inscriptions. He sought to cast doubt on whether the mosque was constructed in 1528 A.D. by or at the behest of Babur.
55. The first document relied on is the text by Fuhrer titled “The Sharqi Architecture of Jaunpur with notes on Zafarabad, Sahet-Mahet and other places in the Northern-Western Provinces and Oudh26. The original edition of the book was printed in 1889 and there is a reprint in 1994 by the ASI. In Chapter X, there is a reference to three inscriptions bearing nos XL, XLI, and XLII. It is from these three inscriptions that Fuhrer formed an opinion that the Babri mosque was constructed at Ayodhya in 1523 A.D or A.H. 930. Inscription XL in Arabic is over the central mihrab and furnishes the Kalimah twice in the following words:
“There is no god but Allah, Muhammad is His Prophet.”
Inscription XLI was found on the mimbar and was written in Persian. The inscription as translated in English reads thus:
“1. By order of Babar, the king of the world,
2. This firmament-like, lofty,
3. Strong building was erected.
4. By the auspicious noble Mir Khan.
5. May ever remain such a foundation,
6. And such a king of the world.”
Inscription XLII was found above the entrance door. Also, in Persian, the inscription has been translated thus:
“1. In the name of God, the merciful, the element.
2. In the name of him who ……; may God perpetually keep him in the world.
3………..
4. Such a sovereign who is famous in the world, and in person of delight for the world.
5. In his presence one of the grandees who is another king of Turkey and China.
6. Laid this religious foundation in the auspicious Hijra 930.
7. O God ! May always remain the crown, throne and life with the king.
8. May Babar always pour the flowers of happiness; may remain successful.
9. His counsellor and minister who is the founder of this fort masjid.
10. This poetry, giving the date and eulogy, was written by the lazy writer and poor servant Fath-allah-Ghorl, composer.”
After adverting to the inscriptions, Fuhrer notes:
“The old temple of Ramachandra at Janamasthanam must have been a very fine one, for many of its columns have been used by the Musalmans in the construction of Babar’s masjid. These are of strong, close-grained, dark-coloured or black stone, called by the natives kasauti, “touch-stone slate,” and carved with different devices. They are from seven to eight feet long, square at the base, centre and capital, and round or octagonal intermediately.”
56. The second piece of documentary evidence in which these inscriptions are purportedly translated the “Babur-Nama”. The translation by A S Beveridge was first published in 192127. Apart from the book, extracts of some of its pages were exhibited by the parties to the proceedings.
Appendix (U) refers to two inscriptions; one inside and another outside the mosque. Photocopies of the pages of appendix (U) were marked as appendix T3 in Suit 4.
57. Beveridge obtained the text of the inscription through the Deputy Commissioner of Faizabad on a request made by her spouse. Beveridge notes that while reproducing the text she had made a few changes. The text of the inscription inside the mosque, as quoted by Beveridge is as follows:
“(1) By the command of the Emperor Babur whose justice is an edifice reaching up to the very height of the heavens.
(2) The good-hearted Mir Baqi built this alighting place of angels.
(3) It will remain an everlasting bounty, and (hence) the date of its erection became manifest from my words: It will remain an everlasting bounty.”
The text of the inscription outside the mosque is thus:
“1. In the name of One who is Great (and) Wise (and) who is Creator of the whole world and is free from the bondage of space.
2. After His praise, peace and blessings be on Prophet Muhammad, who is the head of all the Prophets in both the worlds.
3. In the world, it is widely talked about Qalandar Babur that he is a successful emperor.”
Beveridge stated that the second inscription outside the mosque was incomplete.
58. The third set of texts in support of the inscriptions is published in “Epigraphia Indica-Arabic-Persian Supplement (In continuation of Epigraphia Indo-Moslemica) 1964 and 1965″28 (reprinted in 1987). This has been published by the Director General, ASI and contains a reference to the inscriptions of Babur. The text is attributed to Maulvi M Ashraf Husain and is edited by Z A Desai. The introductory note to the edition states:
“A rough draft of this article by the author, who was my predecessor, was found among sundry papers in my office. At the time of his retirement in 1953, he had left a note saying that it might be published after revision by his successor. Consequently, the same is published here after incorporation of fresh material and references and also, extensive revision and editing. The readings have been also checked, corrected and supplemented with the help of my colleague, Mr. S.A.Rahim, Epigraphical Assistant,-Editor.”
The text contains the following description in regard to the construction of Babri Masjid:
“The Baburi-Masjid, which commands a picturesque view from the riverside, was constructed according to A. Fuhrer in A.H. 930 (1523-24 A.D.) but his chronology, based upon incorrect readings of inscriptions supplied to him, is erroneous. Babur defeated Ibrahim Lodi only in A.H. 933 (1526 A.D.), and moreover, the year of construction, recorded in two of the three inscriptions studied below, is clearly A.H. 935 (1528-29 A.D.). Again, it was not built by Mir Khan as stated by him. The order for building the mosque seems to have been issued during Babur’s stay at Ajodhya in A.H. 934 (1527-28 A.D.), but no mention of its completion is made in the Babur Nama. However, it may be remembered that his diary for the year A.H. 934 (1527-28 A.D.) breaks off abruptly, and throws the reader into the dark in regard to the account of Oudh.”
The text also provides an account of the manner in which the author obtained an inked rubbing of one of the inscriptions from Sayyid Badru’l Hasan of Faizabad:
“The mosque contains a number of inscriptions. On the eastern facade is a chhajja, below which appears a Quranic text and above, an inscription in Persian verse. On the central mihrab are carved religious texts such as the Kalima (First Creed), etc. On the southern face of the pulpit was previously fixed a stone slab bearing a Persian inscription in verse. There was also another inscription in Persian verse built up into the right hand side wall of the pulpit. Of these, the last- mentioned two epigraphs have disappeared. They were reportedly destroyed in the communal vandalism in 1934 A.D., but luckily, I managed to secure an inked rubbing of one of them from Sayyid Badru’l Hasan of Fyzabad. The present inscription, restored by the Muslim community, is not only in inlaid Nasta’liq characters, but is also slightly different from the original, owing perhaps to the incompetence of the restorers in deciphering it properly.
The readings and translations of the historical epigraphs mentioned above, except in the case of one, were published by Fuhrer and Mrs. Beveridge, but their readings are so incomplete, inaccurate and different from the text that their inclusion in this article is not only desirable but also imperative.
The epigraph studied below was inscribed on a slab of stone measuring about 68 by 48 cm., which was built up into the southern side of the pulpit of the mosque, but is now lost, as stated above. It is edited here from the estampage obtained from Sayyid Badru’l Hasan of Fyzabad. Its three-line text consists of six verses in Persian, inscribed in ordinary Naskh characters within floral borders. It records the construction of the mosque by Mir Baqi under orders from emperor Babur and gives the year A.H. 935 (1528-29 A.D.) in a chronogram.”
The author states that on the southern side of the pulpit of the mosque was an inscription fixed on a slab of stone measuring 68 X 48 cm but the original was lost. What is quoted is the version obtained from the inked rubbing noted above. The text of the first inscription was thus:
“(1) By the order of king Babur whose justice is an edifice, meeting the palace of the sky (i.e. as high as the sky).
(2) This descending place of the angels was built by the fortunate noble Mir Baqi.
(3) It will remain an everlasting bounty, and (hence) the date of its erection became manifest from my words: It will remain an everlasting bounty.”
As regards the second inscription, the judgment of Justice Sudhir Agarwal notes:
“1449. Fuhrer’s inscription no. XLI which he mentions that the same was found inside the mosque on the mimbar (right hand side of the disputed building) has been termed as second inscription by Maulvi F. Ashraf Hussain. It consists of three couplets arranged in six lines. He (Hussain) clearly admits non existence of the said inscription by observing “the epigraphical Tablet” which was built up into right hand side wall of the pulpit, does not exist now, and, therefore, the text of the inscription is quoted here from Furher’s work, for the same reason, its illustration could not be given.” Husain/Desai however, did not agree to the reading of the inscription by Fuhrer and observed that Furher’s reading does not appear free from mistakes.”
The text of the third inscription is as follows:
“(1) In the name of Allah, the Beneficent, the Merciful. And in Him is my trust.
(2) In the name of One who is Wise, Great (and) Creator of all the universe (and) is spaceless.
After His praise, blessings be upon the Chosen one (i.e. the Prophet), who is the head of prophets and best in the world. The Qalandar-like (i.e. truthful) Babur has become celebrated (lit. a story) in the world, since (in his time) the world has achieved prosperity.
(3) (He is) such (an emperor) as has embraced (i.e. conquered) all the seven climes of the world in the manner of the sky.
In his court, there was a magnificent noble, named Mir Baqi the second Asaf, councillor of his Government and administrator of his kingdom, who is the founder of this mosque and fort-wall.
(4) O God, may he live for ever in this world, with fortune and life and crown and throne. The time of the building is this auspicious date, of which the indication is nine hundred (and) thirty five (A.H. 935=1528-29 A.D.).
Completed was this praise of God, of Prophet and of king. May Allah illumine his proof. Written by the weak writer and humble creature, Eathu’llah Muhammad Ghori.”
As regards the inscriptions noted by Fuhrer, certain significant aspects need to be noted. While the second inscription contains a reference to the order of Babur for the construction of the mosque, construction is attributed to Mir Khan (not Mir Baqi). The third inscription refers to the foundation of the construction of the mosque being laid in Hijri 930 which corresponds to 1523 A.D. This is prior to the invasion by Babur and the battle at Panipat which resulted in the defeat of Ibrahim Lodhi. As regards the work of Beveridge, it is evident that she had neither seen the original text nor had she translated the text of the inscriptions herself. Beveridge obtained a purported text of the inscriptions through her spouse from the Deputy Commissioner, Faizabad. Beveridge claimed that she received a copy of the text through correspondence initiated by her spouse who was an ICS officer in the colonial government. She had neither read the original nor is there anything to indicate that she was in a position to translate it. Beveridge states that she made “a few slight changes in the term of expression”. What changes were made by Beveridge has not been explained. According to her, the text of the two inscriptions was incomplete and was not legible. The text provided by Fuhrer shows that the construction of the mosque was not in 1528 A.D. Inscription XLI mentions the name of Mir Khan while inscription XLII refers to the construction of the mosque as Hijri 930.
59. Justice Sudhir Agarwal while adverting to the work of Ashraf Husain and Z A Desai took serious note of the “fallacy and complete misrepresentation” of the author in publishing a text under the authority of the ASI without regard for its accuracy, correctness and genuineness:
“1463. We are extremely perturbed by the manner in which Ashraf Husain/Desai have tried to give an impeccable authority to the texts of the alleged inscriptions which they claim to have existed on the disputed building though repeatedly said that the original text has disappeared. The fallacy and complete misrepresentation on the part of author in trying to give colour of truth to this text is writ large from a bare reading of the write up. We are really at pains to find that such blatant fallacious kind of material has been allowed to be published in a book published under the authority of ASI, Government of India, without caring about its accuracy, correctness and genuineness of the subject.
…Both these inscriptions i.e., the one claimed to be on the southern face of the pulpit and the other on the right hand side wall of the pulpit are said to be non-available by observing “of these the last mentioned two epigraphs have disappeared”. The time of disappearance according to Maulvi Ashraf Husain was 1934 A.D. when a communal riot took place at Ayodhya. However, he claimed to have got an inked rubbing on one of the two inscriptions from Syed Badrul Hasan of Faizabad. The whereabouts of Syed Badrul Hasan, who he was, what was his status, in what way and manner he could get that ink rubbing of the said inscription and what is the authenticity to believe it to be correct when original text of the inscription are not known. There is nothing to co-relate the text he got as the correct text of the inscription found in the disputed building claimed to have lost in 1934.”
The High Court observed that two inscriptions, those on the southern face of the pulpit and on the wall on the right of the pulpit were not available. According to Ashraf Husain, the epigraphs disappeared in 1934 at the time of the communal riot. However, reliance was sought to be placed on an alleged “inked rubbing” without explaining the identity or whereabouts of the person from whom it was obtained. The criticism of the High Court is not without basis. The identity of the individual from whom the inked rubbings were obtained was not explained. Nor was there any explanation about the manner in which he had in turn obtained it. There was indeed nothing to co-relate the text which that individual had obtained with the translation in the text compiled by Ashraf Husain and Z A Desai. The High Court observed:
“1464…When the original was already lost and there was nothing to verify the text of restored inscription with the original, neither the restored one can be relied upon nor is it understandable as to how he could have any occasion to compare the restored one with the alleged… original…”
In this background, the High Court observed:
“1466…The text, description and whatever had been set up by Ashraf Husain in respect of the above inscription is unbelievable and lacks trustworthiness. We are constrained to observe at this stage that in the matter of historical events and that too, when it bears a religious importance and the matter has also seen serious disputes between two communities, the persons who are connected with history… must behave responsibly and before making any write up, should check up, cross check and verify very carefully what they are writing since the consequences of their write up may be dangerous and irreparable.”
60. A fourth version of the inscriptions emerged pursuant to a direction of the Civil Judge dated 26 March 1946 in Shia Central Waqf Board v Sunni Central Board of Waqf29. In pursuance of those directions, a person by the name of Sr. A Akhtar Abbas is stated to have read an inscription and prepared his inspection note. The High Court, however, noted that the text as reproduced in the judgment dated 30 March 1946 states that in the first inscription, the words are “by the order of Shah Babar, Amir Mir Baki built the resting place of angels in 923 A.H. i.e. 1516-17 A.D”. In respect of the second inscription, there is a reference to “Mir Baki of Isphahan in 935 A.H. i.e. 1528-29 AD”. The High Court observed that it was not apprised of whether in the entire Babur-Nama, there was a reference to any Mir Baki Isphahani though, there was a reference to Baki Tashkendi. Besides one of the two tablets was new and had been replaced for the original tablet which had been demolished during the communal riots of 1934. On the above state of the evidence, the High Court doubted the genuineness and authenticity of the transcripts of the inscriptions which were relied upon before it.
61. At this stage, it is necessary to make a reference to the “Tuzuk-i-Babri”30.
The Babur-Nama contains the daily diary of Babur commencing from 899 Hijri (1494 AD). Out of the life span of Babur, a description of eighteen years is available over different periods. Babur came to India in 1526 A.D. The description available until his death is for the following periods, (noted by Justice Sudhir Agarwal):
“1487…
1. From 1 Safar 932 Hijri (17 November 1525 AD) till 12 Rajab 934 Hijri (2nd April 1528 AD)
2. From 3 Muharram 934 Hijri (18th September 1528 AD) till 3 Moharram 936 Hijri (7th September 1529 AD).”
The records for the period from 2 April 1528 till 17 September 1528 are missing. Out of this period, the period from 2 April 1528 to 15 September 1528 was of 934
Hijri while the period from 15 September 1528 to 17 September 1528 was of 935 Hijri. Justice Sudhir Agarwal noted in the High Court that the crucial year was 935 Hijri and the missing record was only of three days.
Babur defeated Ibrahim Lodhi at Panipat on 20 April 1526. On 28 March 1528, Babur reached the junction of the rivers Ghaghara and Saryu. After a reference to the date 2 April 1528, there is a break until 15 September 1528.
62. Beveridge’s translation of Babur-Nama refers to the employment of artisans in the construction of buildings at several places including at Agra and Gwalior:
“1533… Another good thing in Hindustan is that it has unnumbered and endless workmen of every kind. There is a fixed caste (jam’i) for every sort of work and for everything, which has done that work or that thing from father to son till now. Mulla Sharaf, writing in the Zafar-nama about the building of Timur Beg’s Stone Mosque, lays stress on the fact that on it 200 stone-cutters worked, from Azarbaijan, Fars, Hindustan and other countries. But 680 men worked daily on my buildings in Agra and of Agra stone-cutters only; while 1491 stone-cutters worked daily on my buildings in Agra, Sikri, Biana, Dulpur, Gualiar and Kuil. In the same way there are numberless artisans and workmen of every sort in Hindustan.”
In this context, Justice Agarwal observed:
“1534. There is mention of buildings in Babur-Nama at different places including temple of Gwalior, mosque at Delhi, Agra, Gwalior and other several places but it is true that neither there is mention of demolition of any religious place by Babar in Awadh area nor there is anything to show that he either entered Ayodhya or had occasion to issue any direction for construction of a building and in particular a Mosque at Ayodhya.”
The High Court recorded the submission made before it by Mr Jilani, counsel for the Sunni Central Waqf Board, in paragraph 1577 of the judgment that since Babur did not enter Ayodhya himself, there was no question of a demolition of a temple by him and a construction of a mosque. The absence in Babur-Nama of a reference to the construction of a mosque has been relied upon as a factor to discredit the inscriptions which have been analysed earlier. This line of enquiry must be read with the caution which must be exercised while drawing negative inferences from a historical text.
63. Mr P N Mishra, learned Counsel adverted to the work of Niccolao Manucci titled “Indian Texts Series-Storia Do Mogor or Mogul India 1653-1708″31, translated in English by William Irvine. Manucci identifies “the chief temples destroyed” by Aurangzeb, among them being:
(i) Maisa (Mayapur);
(ii) Matura (Mathura);
(iii) Caxis (Kashi); and
(iv) Hajudia (Ajudhya).
Manucci was a traveller who had visited India during the reign of Aurangzeb.
Besides, the work of Manucci, there is the “Ain-e-Akbari”32 written by Abul Fazal Allami. Ain-e-Akbari deals with the province of Oudh and refers to Ayodhya and its association with Lord Ram. The text refers to “two considerable tombs of six and seven yards in length” near the city. The text identified several sacred places of pilgrimage. It specifically speaks of Ayodhya where during the month of Chaitra, a religious festival is held. Mr Mishra urged that there is no reference in the Ain-e-akbari to the construction of a mosque at Ayodhya. The text refers to certain cities as being dedicated to the divinities, among them being Kashi and Ayodhya. By its order dated 18 March 2010, the High Court permitted the above text to be relied on under the provisions of Section 57(13) of the Evidence Act 1872.
64. Rebutting the above submissions principally urged by Mr P N Mishra and Mr Mohd Nizamuddin Pasha, learned Counsel appeaing on behalf of the plaintiffs in Suit 4 urged that an unnecessary confusion was sought to be created over the identity of Mir Baqi. He submitted that in the Babur-Nama, he is known by the following titles / suffixes:
(j) Baqi Sharghwal – “high official of Central Asian sovereigns, who is supreme over all qazis and mullah”. (See “Baburnama”, translated by A.S. Beveridge, 1921, p. 463);
(ii) Baqi Mingbashi – Commander of a thousand men (See “Baburnama”, translated by A.S. Beveridge, 1921, p. 590); and
(iii) Baqi Tashkinti – Hailing of Tashkent (See “Baburnama”, translated by A.S. Beveridge, 1921, p. 601, 684).
Mr Pasha urged that the inscriptions above the door of Babri Masjid read as Mir Baqi Asif Sani, which the District Judge, Faizabad misread as ‘Isfahani’ in his order of 1946 in the suit between the Shia Waqf Board and Sunni Waqf Board.
65. Having set out the material which was presented before the High Court in support of the plea that the mosque was constructed in 1528 by Mir Baki, on the instructions of Emperor Babur following the conquest of the sub-continent, it becomes necessary to analyse the conclusions which have been arrived at by the three judges of the High Court :
(i) Justice S U Khan
Justice S U Khan held:
“Muslims have not been able to prove that the land belonged to Babur under whose orders the mosque was constructed”
Moreover, the learned judge held that the inscriptions on the mosque as translated by Fuhrer, Beveridge and Z A Desai were not authentic and hence, on the basis of these inscriptions alone, it could not be held either that the disputed building was constructed by or under the orders of Babur or that it was constructed in 1528. Justice S U Khan specifically observed that:
“In this regard detailed reasons have been given by my learned brother S. Agarwal, J. with which I fully agree”.
However, in the course of his conclusions titled as “Gist of the Findings” Justice Khan held:
” 1. The disputed structure was constructed as mosque by or under orders of Babar.
2. It is not proved by direct evidence that premises in dispute including constructed portion belonged to Babar or the person who constructed the mosque or under whose orders it was constructed.”
The conclusion in point 1 in the above extract of the conclusions is contrary to the earlier finding that it could not be held either that the mosque was constructed by or under the orders of Babur or that it was constructed in 1528. The finding on point 1 is also contrary to the specific observation that Justice S U Khan was in agreement with the decision of Justice Sudhir Agarwal in regard to the lack of authenticity of the inscriptions.
(ii) Justice Sudhir Agarwal
Justice Sudhir Agarwal held:
“1679… it is difficult to record a finding that the building in dispute was constructed in 1528 AD by or at the command of Babar since no reliable material is available for coming to the said conclusion. On the contrary the preponderance of probability shows that the building in dispute was constructed at some later point of time and the inscriptions thereon were fixed further later but exact period of the two is difficult to ascertain…
…
1681. In the absence of any concrete material to show the exact period and the reign of the concerned Mughal emperor or anyone else during which the above construction took place, we are refraining from recording any positive finding on this aspect except that the building in dispute, to our mind, may have been constructed much later than the reign of Emperor Babar and the inscriptions were fixed further thereafter and that is why there have occurred certain discrepancies about the name of the person concerned as also the period. The possibility of change, alteration or manipulation in the inscriptions cannot be ruled out.”
While answering the issues framed in the suits, Justice Agarwal held:
“1682… (A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) are answered in negative. The defendants have failed to prove that the property in dispute was constructed by… Emperor Babar in 1528 AD. Accordingly, the question as to whether Babar constructed the property in dispute as a ‘mosque’ does not arise and needs no answer.
(B) Issue No.1(a) (Suit-4) is answered in negative. The plaintiffs have failed to prove that the building in dispute was built by Babar. Similarly defendant no.13 has also failed to prove that the same was built by Mir Baqi. The further question as to when it was built and by whom cannot be replied with certainty since neither there is any pleading nor any evidence has been led nor any material has been placed before us to arrive at a concrete finding on this aspect. However, applying the principle of informed guess, we are of the view that the building in dispute may have been constructed, probably, between 1659 to 1707 AD i.e. during the regime of Aurangzeb.”
In the last part of the above findings, the Judge has recorded that it was not possible to enter a finding of fact with any certainty as to when the structure was constructed in the absence of pleading or evidence. The “informed guess” at the end of the above observation that the structure was probably constructed by Aurangzeb between 1659-1707 cannot be placed on the pedestal of a finding of fact.
(iii) Justice D V Sharma
Justice DV Sharma in the course of his decision arrived at the finding that:
“Thus, on the basis of the opinion of the experts, evidence on record, circumstantial evidence and historical accounts…, it transpires that the temple was demolished and the mosque was constructed at the site of the old Hindu temple by Mir Baqi at the command of Babur. Issue Nos. 1 and 1(a) are decided in favour of the defendants and against the plaintiffs.”
66. The High Court entered into the controversy surrounding the authenticity of the inscriptions on the basis of the hypothesis that the inscriptions were the sole basis for asserting that the mosque had been constructed by Babur. Justice Agarwal came to the conclusion that the inscriptions were not authentic and hence a finding that the mosque was constructed by or at the behest of Babur in 1528 A.D. could not be arrived at. Justice S U Khan’s reasoning in the text of the judgment was in accord with the view of Justice Agarwal but then, as we have noted, his ultimate conclusion that the disputed structure was constructed as a mosque by or under the orders of Babur is not consistent with the earlier part of the reasons. Justice Sharma held that the mosque was constructed by Mir Baqi at the command of Babur.
67. The basic issue, however, is whether it was necessary for the High Court to enter into this thicket on the basis of the pleadings of the parties. In the suit instituted by the Sunni Central Waqf Board (Suit 4), the case is that the mosque was constructed by Babur after his conquest and occupation of the territories, including the town of Ayodhya. Significantly, Suit 5 which has been instituted on behalf of Lord Ram and Ram Janmabhumi through a next friend also proceeds on the basis that the mosque was constructed by Mir Baqi who was the commander of Babur’s forces. The pleading in the plaint in Suit 5 reads thus:
“23. That the books of history and public records of unimpeachable authenticity, establish indisputably that there was an ancient Temple of Maharaja Vikramaditya’s time at Sri Rama Janma Bhumi, Ayodhya. That Temple was destroyed partly and an attempt was made to raise a mosque thereat, by the force of arms, by Mir Baqi, a commander of Babar’s hordes. The material used was almost all of it taken from the Temple including its pillars which were wrought out of Kasauti or touch-stone, with figures of Hindu gods and goddesses carved on them. There was great resistance by the Hindus and many battles were fought from time to time by them to prevent the completion of the mosque. To this day it has no minarets, and no place for storage ov f water for Vazoo. Many lives were lost in these battles. The last such battle occurred in 1855. Sri Rama Janma Bhumi, including the building raised during the Babar’s time by Mir Baqi, was in the possession and control of Hindus at that time.” (Emphasis supplied)
Immediately following the text of the pleading in the above extract, is a reference to the 1928 edition of the Faizabad Gazetteer. The text of the gazetteer is incorporated in the plaint and reads thus:
“23…In 1528 Babar came to Ayodhya and halted here for a week. He destroyed the ancient temple and on its site built a mosque, still known as Babar’s mosque. The materials of the old structure were largely employed, and many of the columns are in good preservation, they are of close-grained black stone, called by the natives kasauti and carved with various device.”
68. The pleading in Suit 5 demonstrates that even according to the plaintiffs, the mosque was built by Mir Baqi, a commander of Babur’s forces, during the time of Babur. Hence, both in the pleading in Suit 4 and in Suit 5, there was essentially no dispute about the fact that the mosque was raised in 1528 A.D. by or at the behest of Babur. The case in Suit 5 is that the Hindus retained possession and control over the mosque. This is a separate matter altogether which has to be adjudicated upon. But, from the pleadings both in Suit 4 and in Suit 5, there appears to be no dispute about the origin or the date of construction of the mosque. Nirmohi Akhara in Suit 3 did not accept that the structure is a mosque at all for, according to it, the structure has always been a Hindu temple which has been managed by the Nirmohis at all material times. The Nirmohis’ disputed the very existence of a mosque, claiming it to be a temple. The case of the Nirmohis will be considered separately while assessing the pleadings, evidence and issues which arise in Suit 3. But, on the basis of the pleadings in Suit 4 and Suit 5, the controversy in regard to the authenticity of the inscriptions will not have any practical relevance.
There is another reason for adopting this line of approach. In the ultimate analysis, whether the mosque was built in 1528 (as both sets of plaintiffs in suit 4 and suit 5 have pleaded) or thereafter would essentially make no difference to the submissions of the rival sides. The plaintiffs in Suit 4 have stated before this Court that the records on which they place reliance in regard to their claim of worship, use and possession commence around 1860. This being the position, the precise date of the construction of the mosque is a matter which has no practical relevance to the outcome of the controversy having regard to the pleadings in Suits 4 and 5 and the positions adopted by the contesting Hindu and Muslim parties before this Court.
H. Judicial review and characteristics of a mosque in Islamic law
69. Mr P N Mishra, learned Counsel appearing on behalf of defendant no 20 in Suit 5 (Akhil Bharatiya Shri Ram JanmBhumi Punrudhar Samiti) has made an earnest effort to demonstrate that the Babri Masjid lacked the essential features of a valid mosque under Islamic jurisprudence. The submissions, essentially deal with two facets:
(i) Features bearing on the location, construction and design of a mosque; and
(ii) The requirements for a valid dedication.
In this segment, the first limb of the submissions is addressed. Whether there was a valid dedication will be addressed in a separate segment in Suit 4. Mr Mishra urged that Babri Masjid cannot be treated to be a valid mosque since it lacked essential features in relation to location, design and construction.
70. Before the High Court, the following issues were framed in Suit 4:
Issue no 1 in Suit 4 – Whether the building in question described as a mosque in the sketch map attached to the plaint was a mosque as claimed by the plaintiffs; If the answer is in the affirmative:
(a) When was it built and by whom-whether by Babur as alleged by the plaintiffs or by Mir Baqi as alleged by defendant no. 13; and
(b) Whether the building had been constructed on the site of an alleged Hindu temple after demolishing the same as alleged by defendant no. 13. If so, its effect.
Issue No 19(d) – Whether the building in question could not be a mosque under Islamic Law in view of the admitted position that it did not have minarets.
Issue No 19(e) – Whether the building in question could not legally be a mosque as on plaintiffs’ own showing it was surrounded by a graveyard on three sides.
Issue No 19(f) – Whether the pillars inside and outside the building in question contain images of Hindu Gods and Goddesses. If the finding is in the affirmative, whether on that account the building in question cannot have the character of mosque under the tenets of Islam.
71. The written statement of defendant no 20 provides the basis for the assertion that Babri Masjid did not fulfil or abide by the features required for a mosque in Islamic jurisprudence:
“…(1) The tomb of this disputed Masjid if it is to be looked from behind would show that it is not in the style developed by Turkis during fifteenth century, nor the Mehrab of the Masjid in that style is to be found. Thus there is no tomb in the disputed Masjid as is to be found in other mosques generally.
(2) On the north door in the front facing each other there are two tigers. They are in the style of taking leaps and their tails are just in the same style when a tiger takes the leap. Between these two tigers there is a peacock. This is not a characteristic of a mosque.
(3) The various Hindu idols are painted or their scriptions are to be found in the disputed mosque.
(4) In the disputed mosque there is no provision for reciting Namaz. To this day it has no minerettes, no place for storage of water for Vazoo.
(5) The Muslim Faith as adumbrated in Holy Koran does not permit the construction of a mosque on the site of temple after demolishing the temple.
(6) Babur never dedicated the property of disputed mosque to ALLAH. Even supposing without admitting that Babur constructed the disputed mosque, yet as it has been done by committing trespass, demolishing the Temple, the abode of God, either by Babur or at his instance by Mir Baqi, the Governor of Oudh, the dedication is wholly invalid and void. The material of the old temple was largely employed in building the mosque and a few of the original columns are still in good preservation. They are of closed grained black stone (Kasauti) bearing various Hindi Bas-reliefs. The outer beam of the main structure being of sandal wood, the height of the columns is 7 to 8 ft., the shape of the base, the middle Section and the capital is square, the rest being round or octagonal . . . . . Subsequently, Aurangjeb also desecrated the shrines of Ayodhya which led to prolonged bitterness between Hindus and Musalmans. Latter also occupied Janmasthan by force and also made an assault on Hanumangarhi. Attacks and counter attacks continued under the leadership of Maulvi Amir Ali (See page 352 of Faizabad Gazetteer 1960).
(7) A mosque must be built in a place of peace and quiet and near a place where there is a sizeable and large number of Muslim population. According to the Tenets of Islam, a mosque cannot be built at place which is surrounded on all sides by temples where the sound of music, of Conch shells or Ghanta Ghariyalis must always disturb the peace and quiet of the place.
(8) A mosque must have minerette for calling the Ajan. According to Baille “When an assembly of worshippers pray in Masjid with permission, i.e. delivery. But it is a condition that prayers be with Ajan or the regular call and be public and not private, for though there should be an assembly yet if it is without Izah and the prayers are private instead of public, the place is no Masjid according to the true disciples.” Indeed there has been no mosque without a minerette after the first half century fight. (See P.R. Ganapati Iyer’s law relating to Hindu and Muhammadan Endowments 2nd Edition 1918 Chapter XVII, page 388).
(9) According to the claim laid by the Muslims in the present suit, the building is surrounded on sides by a graveyard known as Ganj Shahidan. There is a mention in the Faizabad Gazetteer also of the burial of seventy-five Muslims at the gate of Janmasthan and the place being known as Ganj Shahidan after the battle of 1855. Although there are no graves anywhere near the building at Sri Rama Janma Bhumi or in its precincts or the area appurtenant thereto for the last more than 50 years and if the building was surrounded by a graveyard during the British times soon after the annexation of Audh by them the building could not be mosque and could not be used as a mosque for offering of prayers except the funeral prayers.”
72. The above challenge is sought to be buttressed by placing reliance on the evidence of some of the Muslim witnesses. Relevant parts of the depositions of these witnesses have been adverted to during the course of the hearing and are reproduced below:
(i) Mohammad Idris (PW-10)
According to the witness:
“A building built on somebody’s land by force will not be a mosque. So, there is no question of its being legitimate or illegitimate. Demolishing any place of worship is forbidden in Islam. So, there is no question of breaking the same and building a mosque instead. If the debris of any fallen temple is sold by its owner, then there is no prohibition on building a mosque by purchasing such materials. It is another thing that they cannot build a mosque by forcibly grabbing this debris.”
On the depiction of the images of human beings, animals, birds or idols, the witness stated:
“If an Imam has the knowledge that pictures of animals and birds, or idols, or statues of human beings, or straight or crooked images or representations of any women are engraved in any structure , he will try to remove such engraving before the recital of namaz. But if he does not do so even then the namaz will get offered. I have already spoken about the status and efficacy of such namaz. It will be Makrooh in some circumstances and it will not be so in some circumstances. If the Imam does not try to remove this types of pictures and shapes, it will be a crime on his part. Similarly it is mentioned in the ‘Shariyat’ that if picture or idol of any living being exists over the walls or pillars of mosque, then the namaz offered there would be ‘Makruh’ (undesirable) under certain situations. It is so mentioned in the ‘Hidaya’ of ‘Fiqh’.”
(ii) Mohd Burhanuddin (PW-11)
“It is true that there is a restriction on forcefully building a mosque over someone else’s land. If the ownership of someone is proved over a land, then a mosque would not be built over there in absence of the consent of owner. . . .If any property belongs to a non-Muslim or even a Muslim, then a mosque cannot be forcibly built over there under any circumstance by demolishing the same. If it is so proved, then the mosque would not be considered legal/proper.”
The witness spoke of arrangements for Vazoo or ablution:
“Namaz can be offered even by performing ‘Taimum’ (substitute for Vazoo), if ‘Vazoo’ has not been performed and there is no arrangement in the mosque for performing ‘Vazoo’ and water is not ‘Dastyab’ (available) even at distant places . . . I have also seen such mosques, where there was no arrangement for performing ‘Vazoo’.”
On human and other images, the witness stated:
“When any Muslim would build a mosque afresh, then he would not get the picture of any living being be it animal-bird or male-female or God-Goddess, depicted inside it and if he does so, he would be an offender. However, it would still be called a mosque if other ‘Sharayat’ are observed.”
On whether a mosque can be constructed on the demolition of a building, the witness stated:
“It is true that according to ‘Ehkam’ (sanction) of the prophet, if any building is demolished and mosque is built from its debris, then the same is ‘Makruh’ (not desirable).”
(iii) Mohd Khalid Nadvi (PW-22)
The witness stated:
“It is true that a mosque will not be constructed by forcibly demolishing a place of worship belonging to any religion. Similarly it cannot be constructed by forcibly capturing a place of worship belonging to any other religion.”
According to the witness, if a place of worship belonging to a particular religion is demolished, it would remain a place of worship for that faith and if it was proved that a temple on a disputed site was forcibly demolished for the construction of a mosque, the temple would continue to be treated as a temple:
“It is correct to say that if a place of worship belonging to a particular faith is demolished, it will remain to be a place of worship belonging to that very faith. It is correct to say that a temple will not lose its character and will remain to be a temple even if it is demolished to build a mosque. If any mosque is demolished and a temple is constructed in its place, the mosque will remain to be a mosque. If it is proved that there was a temple on the disputed site forcibly demolishing which a mosque was constructed, then such a temple will continue to be treated as a temple.”
(iv) Sibte Mohd. Naqvi of the Shia sect (PW-25)
According to the witness:
“vii. At one place, two separate buildings of worship or two religions cannot exist.
xv. Images, portraits, pictures, idols etc. as also designed garments having pictures are prohibited in a mosque.
xvii. Musical instrument i.e. bell etc. is not permissible in the mosque or in the vicinity thereof.
xviii. Where bells are ringing or conch shells are blown, prayer would not be offered.”
73. Mr Mishra, while placing reliance on the texts of the Hadees sought to urge that there was a breach of the following cardinal principles of Islamic law:
(i) Azaan must be called at least twice a day;
(ii) A mosque must have a Vazoo or place for ablution;
(iii) A mosque should not contain visual images of idols, floral designs or the human form;
(iv) No ringing of bells is permissible within the precincts of or in the area surrounding the mosque;
(v) On one plot of land, two religious places are impermissible;
(vi) No preparation of food in a kitchen is permissible in or in close- proximity to a mosque;
(vii) Land should not be usurped for the construction of a mosque; and
(viii) No graves should be situated in close-proximity to a mosque.
These submissions have been controverted by Mr Mohd Nizamuddin Pasha, learned Counsel appearing on behalf of plaintiffs in Suit 4, both in the course of his oral arguments and in written submissions. Mr Pasha urged:
(i) On whether Vazoo is necessary in a mosque:
(a) Babri Masjid had a specific place ear-marked for ablution;
(b) In any event according to the Hadees, it is preferable to perform ablution at home before coming to the mosque;
(c) The Hadees which have been cited state that bathing on Friday is a must or indicate how Vazoo is to be performed;
(ii) On whether pictures or depictions detract from the character of a mosque:
(a) The purpose of the prohibition is to ensure that a worshipper is not detracted from prayer;
(b) While a Muslim may claim that a picture is interfering with prayer, an outsider cannot claim that a prayer is makruh because of the presence of images in the mosque; and
(c) Pictures of lifeless things are not specifically disapproved.
(iii) As regards minarets:
(a) The first mosque of Islam neither had domes nor minarets; and
(b) A large number of mosques including of the same period, do not have minarets.
(iv) On the presence of pillars /columns, there is no absolute injunction;
(v) There cannot be two qiblas in one land. This is a misinterpretation of a Hadees which means that a state cannot have two religions;
(vi) On the claim that there should not be any bells nearby:
(a) In practical terms in a populated city, such an injunction is incapable of being observed;
(b) Mosques in the vicinity of temples and ringing of bells was not unusual in India; and
(c) The Sufi idea of Islam is more accommodative of other faiths.
(vii) As regards the presence of graves, the map annexed to the plaint of 1885 shows that there are no graves in front of the western face of the mosque. The Hadees indicates that one should not offer namaz facing a grave; and
(viii) In any case what is or is not permissible in relation to graves is heavily disputed with sufis and wahabis being on extreme ends of the spectrum.
Finally, Mr Pasha argued that the concept of ‘Makruh’ means something which is undesirable but not prohibited; this is a purely spiritual idea about what makes worship dearer to Almighty Allah.
Mr Pasha, while controverting the interpretation placed by Mr Mishra has indicated that Mr Mishra has selectively relied upon certain aspects of the Hadees without reading the religious texts in their context and as a whole.
74. Justice Sudhir Agarwal observed that Babur, as the Emperor, had absolute power as an independent sovereign:
“3389…The position of Babar, in our view, was that of independent sovereign, Sole Monarch, having paramount power. It was supreme, uncontrollable and absolute, not answerable to anyone. Whether invader or anything else, the fact remains that he had been the supreme authority in the territory which he conquered. Nobody could have questioned him.”
The judge observed that “Whether the building in dispute is a mosque, treated to be a mosque, believed to be a mosque and practiced as a mosque” have to be decided not in terms of the tenets of the Shariat but according to how people believed and conducted themselves over a length of time. The High Court held that whether Muslims had used the mosque for offering worship immediately after its construction had not been proved either way but there was evidence to indicate that Muslims had visited the mosque in order to offer namaz after the partition wall was set up in 1856-57. Whether namaz was offered was not proved but it had been established that since 1857 until the last namaz was offered in the inner courtyard on 16 December 1949, Muslims had visited the mosque for worship. Hence, whether the building could be a mosque in accordance with the tenets of the Shariat was of no significance since the conduct of those who believed and worshipped would be the determinative factor for determining the nature and use of the property in question. The authority of Babur or Aurangzeb (whoever constructed the mosque) was absolute and the court could not examine whether the mosque had been constructed in accordance with or contrary to the tenets of the Shariat:
“3404…Whether Babar or Aurangzeb or anybody else, they were supreme authority. Whether their action was consistent with the tenets of Islam or not, in our view, is unchallengeable after so many centuries particularly when those supreme authorities were not subordinate to any system of justice. Even otherwise, we cannot examine as to whether they rightly or wrongly constructed a place terming it as mosque particularly when at least the local people believe from the representation, whatever it is, that the construction which has been made, is that of a mosque.”
In the view of Justice Sudhir Agarwal:
“3405. Something which took place more than 200 and odd years, we are clearly of the view, cannot be a subject matter of judicial scrutiny of this Court which is the creation of statute that came into force in a system which itself was born after more than hundred and odd years when the building in dispute might have been constructed. All the expert religious witnesses have admitted that if a mosque is constructed, the picture or images of living beings like human images or animal images shall not be allowed to remain thereat. The creator of the building in dispute thought otherwise, yet the followers of Islam did not hesitate in using the premises for the purpose of Namaz. Whether the belief of such persons, who visited the premises for such worship, is superior or inferior, whether such offering of Namaz was regular or frequent or occasional and intermittent would be of no consequence. Suffice, if there had been Namaz by the Muslim. The offering of worship by Hindus knowing the building in dispute that it is a mosque is something else but on that basis the manner in which the building in dispute has been known for the last more than 250 years and odd cannot be changed.”
The offering of prayer by Muslims though intermittently from 1860 uptill 16 December 1949 was in the view of the High Court a matter of significance.
75. Assailing the above view, it has been urged by Mr Mishra that the observations of the High Court are per incuriam and that in terms of Section 3 of the Oudh Laws Act 1876, decisions on matters of religious use or institutions have to be decided according to Islamic law or, as the case may be, according to Hindu law.
76. Essentially, the submissions which have been urged before this Court require it to embark upon a journey into theological doctrine and to apply the doctrine to deduce whether every one of the features prescribed by the Hadees for the location or construction of a mosque have been fulfilled.
77. During the course of the submissions, it has emerged that the extreme and even absolute view of Islam sought to be portrayed by Mr P N Mishra does not emerge as the only available interpretation of Islamic law on a matter of theology. Hence, in the given set of facts and circumstances, it is inappropriate for this Court to enter upon an area of theology and to assume the role of an interpreter of the Hadees. The true test is whether those who believe and worship have faith in the religious efficacy of the place where they pray. The belief and faith of the worshipper in offering namaz at a place which is for the worshipper a mosque cannot be challenged. It would be preposterous for this Court to question it on the ground that a true Muslim would not offer prayer in a place which does not meet an extreme interpretation of doctrine selectively advanced by Mr Mishra. This Court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper.
Above all, the practice of religion, Islam being no exception, varies according to the culture and social context. That indeed is the strength of our plural society. Cultural assimilation is a significant factor which shapes the manner in which religion is practiced. In the plural diversity of religious beliefs as they are practiced in India, cultural assimilation cannot be construed as a feature destructive of religious doctrine. On the contrary, this process strengthens and reinforces the true character of a country which has been able to preserve its unity by accommodating, tolerating and respecting a diversity of religious faiths and ideas. There can be no hesitation in rejecting the submission made by Mr Mishra. Our Court is founded on and owes its existence to a constitutional order. We must firmly reject any attempt to lead the court to interpret religious doctrine in an absolute and extreme form and question the faith of worshippers. Nothing would be as destructive of the values underlying Article 25 of the Constitution.
I. Places of Worship Act
78. Parliament enacted the Places of Worship (Special Provisions) Act 199133. Sections 3, 6 and 8 of the legislation came into force at once on the date of enactment (18 September 1991) while the other provisions are deemed to have come into force on 11 July 1991. The long title evinces the intent of Parliament in enacting the law, for it is:
“An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August, 1947, and for matters connected therewith or incidental thereto.”
The law has been enacted to fulfil two purposes. First, it prohibits the conversion of any place of worship. In doing so, it speaks to the future by mandating that the character of a place of public worship shall not be altered. Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947 when India achieved independence from colonial rule.
79. The expression ‘place of worship’ is defined in Section 2(c) thus :
“2(c) “place of worship” means a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called.”
In Section 2(a), the Places of Worship Act provides that the “commencement of this Act” means the commencement on 11 July 1991.
Section 3 enacts a bar on the conversion of a place of worship of any religious denomination or a section of it into a place of worship of a different religious denomination or of a different segment of the same religious denomination:
“3. Bar of conversion of places of worship.—No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.”
Section 4 preserves the religious character of a place of worship as it existed on 15 August 1947:
“4. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc.—(1) It is hereby declared that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day.
(2) If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority:
Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall not so abate and every such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1).
(3) Nothing contained in sub-section (1) and sub-section (2) shall apply to,—
(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force;
(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act;
(c) any dispute with respect to any such matter settled by the parties amongst themselves before such commencement;
(d) any conversion of any such place effected before such commencement by acquiescence;
(e) any conversion of any such place effected before such commencement which is not liable to be challenged in any court, tribunal or other authority being barred by limitation under any law for the time being in force.”
(Emphasis supplied)
The Places of Worship Act however contains an exemption from the application of its provisions to the place of worship “commonly known as Ram Janam Bhumi –Babri Masjid” and to any suit, appeal or proceeding relating to it. Section 5 stipulates:
“5. Act not to apply to Ram Janma Bhumi-Babri Masjid.— Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship.”
Section 6 provides for a punishment of three years’ imprisonment and a fine for contravening the provisions of Section 3 and for an attempt or act of abetment:
“6. Punishment for contravention of section 3.—(1) Whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
(2) Whoever attempts to commit any offence punishable under sub-section (1) or to cause such offence to be committed and in such attempt does any act towards the commission of the offence shall be punishable with the punishment provided for the offence.
(3) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under sub-section (1) shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence.”
Section 7 confers upon the Places of Worship Act overriding force and effect:
“7. Act to override other enactments.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act.”
80. The law imposes two unwavering and mandatory norms:
(i) A bar is imposed by Section 3 on the conversion of a place of worship of any religious denomination or a section of a denomination into a place of worship either of a different section of the same religious denomination or of a distinct religious denomination. The expression ‘place of worship’ is defined in the broadest possible terms to cover places of public religious worship of all religions and denominations; and
(ii) The law preserves the religious character of every place of worship as it existed on 15 August 1947. Towards achieving this purpose, it provides for the abatement of suits and legal proceedings with respect to the conversion of the religious character of any place of worship existing on 15 August 1947. Coupled with this, the Places of Worship Act imposes a bar on the institution of fresh suits or legal proceedings. The only exception is in the case of suits, appeals or proceedings pending at the commencement of the law on the ground that conversion of a place of worship had taken place after 15 August 1947. The proviso to sub-section
(2) of Section 4 saves those suits, appeals and legal proceedings which are pending on the date of the commencement of the Act if they pertain to the conversion of the religious character of a place of worship after the cut-off date. Sub-Section (3) of Section 4 however stipulates that the previous two sub-sections will not apply to:
(a) Ancient and historical monuments or archaeological sites or remains governed by Act 24 of 1958 or any other law;
(b) A suit or legal proceeding which has been finally decided settled or disposed of;
(c) Any dispute which has been settled by the parties before the commencement of the Act;
(d) A conversion of a place of worship effected before the commencement of the Act by acquiescence; and
(e) Any conversion of a place of worship before the commencement of the Act in respect of which the cause of action would be barred by limitation.
Section 5 stipulates that the Act shall not apply to Ram Janmabhumi – Babri Masjid and to any suit, appeal or any proceeding relating to it. Consequently, there is a specific exception which has been carved out by the provisions of the Places of Worship Act in respect of the present dispute.
The intention of Parliament
81. The purpose of enacting the law was explained by the Union Minister of Home Affairs on the floor of the Lok Sabha on 10 September 199134:
“We see this Bill as a measure to provide and develop our glorious traditions of love, peace and harmony. These traditions are part of a cultural heritage of which every Indian is justifiably proud. Tolerance for all faiths has characterized our great civilization since time immemorial.
These traditions of amity, harmony and mutual respect came under severe strain during the pre-independence period when the colonial power sought to actively create and encourage communal divide in the country. After independence we have set about healing the wounds of the past and endeavoured to restore our traditions of communal amity and goodwill to their past glory. By and large we have succeeded, although there have been, it must be admitted, some unfortunate setbacks. Rather than being discouraged by such setbacks, it is our duty and commitment to taken lesson from them for the future.”
(Emphasis supplied)
The Union Minister of Home Affairs indicated that the law which sought to prohibit the forcible conversion of places of worship was not “to create new disputes and to rake up old controversies which had long been forgotten by the people…but facilitate the object sought to be achieved”35. Speaking in support of the cut-off date of 15 August 1947, one of the Members (Shrimati Malini Bhattacharya) explained36:
“But I think this August 15, 1947 is crucial because on that date we are supposed to have emerged as a modern, democratic and sovereign State thrusting back such barbarity into the past once and for all. From that date, we also distinguished ourselves…as State which has no official religion and which gives equal rights to all the different religious denominations. So, whatever may have happened before that, we all expected that from that date there should be no such retrogression into the past.”
(Emphasis supplied)
82. The Places of Worship Act which was enacted in 1991 by Parliament protects and secures the fundamental values of the Constitution. The Preamble underlines the need to protect the liberty of thought, expression, belief, faith and worship. It emphasises human dignity and fraternity. Tolerance, respect for and acceptance of the equality of all religious faiths is a fundamental precept of fraternity. This was specifically adverted to by the Union Minister of Home Affairs in the course of his address before the Rajya Sabha37 on 12 September 1991 by stating:
“I believe that India is known for its civilization and the greatest contribution of India to the world civilization is the kind of tolerance, understanding, the kind of assimilative spirit and the cosmopolitan outlook that it shows…
The Advaita philosophy…clearly says that there is no difference between God and ourselves. We have to realize that God is not in the mosque or in the temple only, but God is in the heart of a person…
Let everybody understand that he owes his allegiance to the Constitution, allegiance to the unity of the country: the rest of the things are immaterial.”
In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered. The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level. Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well. The State, has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold the equality of all religions and secularism which is a part of the basic features of the Constitution. The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution. The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.
Secularism as a constitutional value
83. In a nine judge Bench decision of this Court in S R Bommai v Union of India38, Justice B P Jeevan Reddy held:
“304…How are the constitutional promises of social justice, liberty of belief, faith or worship and equality of status and of opportunity to be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his duties and his entitlements? Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. This may be a concept evolved by western liberal thought or it may be, as some say, an abiding faith with the Indian people at all points of time. That is not material. What is material is that it is a constitutional goal and a basic feature of the Constitution as affirmed in Kesavananda Bharati [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : 1973 Supp SCR 1] and Indira N. Gandhi v. Raj Narain [1975 Supp SCC 1 : (1976) 2 SCR 347] . Any step inconsistent with this constitutional policy is, in plain words, unconstitutional.”
The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution. There is a purpose underlying the enactment of the Places of Worship Act. The law speaks to our history and to the future of the nation. Cognizant as we are of our history and of the need for the nation to confront it, Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.
84. The observations made on the Places of Worship Act by Justice D V Sharma are contrary to the scheme of the law as they are to the framework of constitutional values. Justice D V Sharma observed as follows:
“1 (c). Section 9 is very wide. In absence of any ecclesiastical Courts any religious dispute is cognizable, except in very rare cases where the declaration sought may be what constitutes religious rite. Places of Worship (Special Provisions) Act, 1991 does not debar those cases where declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognized before coming into force of the Act.”
The above conclusion of Justice D V Sharma is directly contrary to the provisions of Section 4(2). Justice D V Sharma postulates in the above observations that the Places of Worship Act will not debar cases of the following nature being entertained namely:
(i) Where a declaration is sought for a period prior to the enforcement of the Places of Worship Act; or
(ii) Where enforcement is sought of a right which was recognised before the enforcement of the Places of Worship Act.
85. Section 4(1) clearly stipulates that the religious character of a place of worship as it existed on 15 August 1947 shall be maintained as it existed on that day. Section 4(2) specifically contemplates that all suits, appeals and legal proceedings existing on the day of the commencement of the Places of Worship Act, with respect to the conversion of the religious character of a place of worship, existing on 15 August 1947, pending before any court, tribunal or authority shall abate, and no suit, appeal or proceeding with respect to such matter shall lie after the commencement of the Act. The only exception in the proviso to sub-section (2) is where a suit, appeal or proceeding is instituted on the ground that the conversion of the religious character of a place of worship had taken place after 15 August 1947 and such an action was pending at the commencement of the Places of Worship Act. Clearly, in the face of the statutory mandate, the exception which has been carved out by Justice D V Sharma runs contrary to the terms of the legislation and is therefore erroneous.
J. Juristic Personality
J.1 Development of the law
86. At the heart of the legal dispute in the present batch of appeals is the question whether the first and second plaintiff in Suit 5 – “Bhagwan Sri Ram Virajman” and “Asthan Sri Ram Janam Bhumi, Ayodhya”, possess distinct legal personalities or, in other words, are “juristic persons”. Courts in India have held that Hindu idols are legal persons. The meaning and significance of this doctrine will be examined over the course of this judgement. At this juncture it is necessary to note that the legal personality of the first plaintiff in Suit 5 (‘Bhagwan Sri Ram Virajman’) as represented by the physical idols of Lord Ram at the disputed site is not contested by any of the parties. Whether the second plaintiff (‘Asthan Sri Ram Janam Bhumi’) is a juristic person has however been the subject of controversy in the oral proceedings before us.
87. The present case requires us to answer two important questions: First, what are the exact contours of the legal personality ascribed to a Hindu idol? In other words, to what extent is the artificial legal personality ascribed by courts to a Hindu idol akin to the legal personality of a natural person? Second, can property of a corporeal nature (in this case land) be ascribed a distinct legal personality? To answer these questions, it is necessary to understand both the true purpose underlying the legal innovation of recognising or conferring legal personality and why courts have conferred legal personality on Hindu idols.
The legal subject: recognising rights, entitlements, duties and liabilities
88. The foundational principle of a legal system is that it must recognise the subjects it seeks to govern. This is done by the law recognising distinct legal units or ‘legal persons’. To be a legal person is to be recognised by the law as a subject which embodies rights, entitlements, liabilities and duties. The law may directly regulate the behaviour of legal persons and their behaviour in relation to each other. Therefore, to be a legal person is to possess certain rights and duties under the law and to be capable of engaging in legally enforceable relationships with other legal persons. Who or what is a legal person is a function of the legal system. The ability to create or recognise legal persons has always varied depending upon historic circumstances. The power of legal systems to recognise and hence also to deny legal personality has been used over history to wreak fundamental breaches of human rights. Roscoe Pound alludes to this in the following passage in “Jurisprudence”:
“In civilised lands even in the modern world it has happened that all human beings were not legal persons. In Roman law down to the constitution of Antonius Pius the slave was not a person. He enjoyed neither rights of family nor rights of patrimony. He was a thing, and as such like animals, could be the object of rights of property. … In French colonies, before slavery was there abolished, slaves were put in the class of legal persons by the statute of April 23, 1833 and obtained a ‘somewhat extended juridical capacity’ by a statute of 1845. In the United States down to the Civil War, the free Negroes in many of the States were free human beings with no legal rights.”39 Pound’s observations were extracted by this Court in Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass40 where a two judge Bench of this Court had to determine whether the “Guru Granth Sahib” possessed a legal personality. While discussing ‘who is a legal person’ Justice A P Misra observed:
“11. …If we trace the history of a “person” in the various countries we find surprisingly it has projected differently at different times.
…
13. With the development of society, where an individual’s interaction fell short, … cooperation of a larger circle of individuals was necessitated. Thus, institutions like corporations and companies were created, to help the society in achieving the desired result. The very constitution of a State, municipal corporation, company etc. are all creations of the law and these “juristic persons” arose out of necessities in the human development. In other words, they were dressed in a cloak to be recognised in law to be a legal unit.”
89. Legal systems across the world evolved from periods of darkness where legal personality was denied to natural persons to the present day where in constitutional democracies almost all natural persons are also legal persons in the eyes of the law. Legal systems have also extended the concept of legal personality beyond natural persons. This has taken place through the creation of the ‘artificial legal person’ or ‘juristic person’, where an object or thing which is not a natural person is nonetheless recognised as a legal person in the law. Two examples of this paradigm are, where a collection of natural persons is collectively conferred a distinct legal personality (in the case of a cooperative society or corporation) and where legal personality is conferred on an inanimate object (in the case of a ship). The conferral of legal personality on things other than natural persons is a legal development which is so well recognised that it receives little exposition by courts today. The legal development is nonetheless well documented. Salmond in his work titled “Jurisprudence” notes:
“Conversely there are, in the law, persons who are not men. A joint-stock company or a municipal corporation is a person in legal contemplation. It is true that it is only a fictitious, not a real person; but it is not a fictitious man. It is personality, not human nature, that is fictitiously attributed by the law to bodies corporate.
So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substance of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition.
But we may go one step further than this in the analysis. No being is capable of rights, unless also capable of interests which may be affected by the acts of others. For every right involves an underlying interest of this nature. Similarly no being is capable of duties, unless also capable of acts by which the interests of others may be affected. To attribute rights and duties, therefore, is to attribute interests and acts as their necessary bases. A person, then, may be defined for the purposes of the law, as any being to whom the law attributes a capability of interests and therefore of rights, of acts and therefore of duties.”41
(Emphasis supplied)
90. A legal person possesses a capability to bear interests, rights and duties. Salmond makes a crucial distinction between legal personality and the physical corpus on which legal personality is conferred:
“The law, in creating persons, always does so by personifying some real thing. Such a person has to this extent a real existence, and it is his personality alone that is fictitious. There is, indeed, no theoretical necessity for this, since the law might, if it so pleased, attribute the quality of personality to a purely imaginary being, and yet attain the ends for which this fictitious extension of personality is devised. Personification, however, conduces so greatly to simplicity of thought and speech, that its aid is invariably accepted. The thing personified may be termed the corpus of the legal person so created; it is the body into which the law infuses the animus of a fictitious personality.
…
Legal persons, being the arbitrary creations of the law, may be as of as many kinds as the law pleases. Those which are actually recognised by our own system, however, all fall within a single class, namely corporations or bodies corporate. A corporation is a group or series of persons which by a legal fiction is regarded and treated as itself a person. If, however, we take account of other systems of our own, we find that the conception of legal personality is not so limited in its application…”42
(Emphasis supplied)
Legal personality is not human nature. Legal personality constitutes recognition by the law of an object or corpus as an embodiment of certain rights and duties. Rights and duties which are ordinarily conferred on natural persons are in select situations, conferred on inanimate objects or collectives, leading to the creation of an artificial legal person. An artificial legal person is a legal person to the extent the law recognises the rights and duties ascribed to them, whether by statute or by judicial interpretation. Salmond presciently notes that the rights and duties conferred on artificial legal persons ultimately represent the interests and benefits of natural persons. In fact, it is precisely because of the substantial benefits derived by natural persons from such objects or collectives that legislators and courts are called upon to consider conferring legal personality on such objects or collectives.
91. At a purely theoretical level, there is no restriction on what legal personality may be conferred. What is of significance is the purpose sought to be achieved by conferring legal personality. To the extent that this purpose is achieved, legal personality may even be conferred on an abstract idea. However, Salmond notes that legal personality is usually conferred on objects which are already the subject of personification or anthropomorphisms in layman’s language out of
“simplicity for thought and speech”. The question whether legal personality is conferred on a ship, idol, or tree is a matter of what is legally expedient and the object chosen does not determine the character of the legal personality conferred. The character of the legal personality conferred is determined by the purpose sought to be achieved by conferring legal personality. There is thus a distinction between legal personality and the physical corpus which then comes to represent the legal personality. By the act of conferring legal personality, the corpus is animated in law as embodying a distinct legal person possessing certain rights and duties.
92. By conferring legal personality, legal systems have expanded the definition of a ‘legal person’ beyond natural persons. Juristic persons so created do not possess human nature. But their legal personality consists of the rights and duties ascribed to them by statute or by the courts to achieve the purpose sought to be achieved by the conferral of such personality. It is important to understand the circumstances in which legal personality has been conferred and consequently the rights and duties ascribed to the inanimate objects on which this conferment takes place.
The Corporation
93. The most widely recognised artificial legal person is the corporation in Company law. However, for the purposes of understanding the circumstances under which courts have conferred legal personality, the example of the corporation is of limited use. The idea of treating a collective of individuals as a single unit for the purposes of identification in law is as old as human civilisation itself. There exists a plethora of examples of such recognition scattered across human history with the advent of guilds, partnerships and early unincorporated businesses. As Phillip Blumberg notes in his book titled “The Multinational Challenge to Corporation Law”:
“When the Crown finally began to charter craft guilds and trading companies – the first business corporations – in the fifteenth century, an understanding of the legal nature of the corporation was already substantially in place With this history before them, Sir Edward Code, writing in the beginning of the seventeenth century; and Blackstone and Kyd, writing in the late eighteenth century, could confidently assert what the corporation was, how it was created, and what legal attributes flowed from its organization. While they had primarily ecclesiastical and municipal corporations in mind, their commentary fully applied to business corporations as well.”43
(Emphasis supplied)
The jurisprudential concept of treating a collective of entrepreneurs as a single unit for the purposes of legal recognition was already well established by the time the first business corporations came into existence and did not warrant examination by the courts. The author further states:
“Until well into the nineteenth century, recognition of a corporation for business purposes, both in England and in the United States, required a specific governmental decision to grant corporate status. In England, this took the form of a character from the Crown or an act of Parliament. In the United States it required a legislative act. …
With the universal triumph of general incorporation statutes more than a century ago, corporations could be formed simply by filing certain forms and paying certain fees and taxes. The state’s role has shrunken dramatically to a general specification of procedures and a ministerial administrative acknowledgement of the incorporators’ compliance with statutory formalities.”44 (Emphasis supplied)
The independent legal personality of a corporation has never been dependent on recognition by courts. The legal personality of the corporation was originally granted by a positive act of the government. In later years, as incorporation became the preferred method of doing business, corporate personality was conferred by general statutes of incorporation which permitted any person to incorporate a company subject to the satisfaction of certain statutory conditions. These historical developments outline the departure from a positive act of the government as the basis of corporate personality, to the creation of statutory frameworks within which it was conferred. It does not, however, outline the reasons underlining the conferral of legal personality and is of little assistance in the present situation.
The Ship
94. A more pertinent example for the present purposes is the conferment of legal personality on a ship. The concepts of a maritime lien and of actions in rem are established precepts of maritime law. A maritime lien may arise in the case of a wrongdoing or damage caused by a ship which gives the claimant a charge on the ‘res’ of the ship. The charge is crystallised by an ‘action in rem’ under which the ship is directly proceeded against, as a legal person. In 1881, Sir George Jessel MR explained this in The City of Mecca45, where he observed:
“You may in England and in most countries proceed against the ship. The writ may be issued against the owner of such a ship, and the owner may never appear, and you get your judgement against the ship without a single person being named from beginning to end. That is an action in rem, and it is perfectly well understood that the judgement is against the ship.”
D R Thomas in his book titled “Maritime Liens”46 traces the history of the judicial conferment of legal personality on ships. He speaks of two theories- the
‘personification theory’ and the ‘procedural theory’ in explaining the evolution of the concept:
“The first [theory], commonly coined as the personification theory, traces the historical origin and development of maritime liens to the juristic technique, which has obtained since medieval times, of ascribing personality to a ship. Under this theory a ship is personified and regarded as a distinct juristic entity with a capacity to contract and commit torts. The ship is both the source and limit of liability.
…
The second theory, known as the procedural theory, is based on the premise that maritime liens evolved out of the process of arrest of a vessel in order to compel the appearance of the res owner and to obtain a security.
…
Although the point is not free of uncertainty it is probably the case that a maritime lien is a substantive right whereas a statutory right of action in rem is in essence a procedural remedy. The object behind the availability of a statutory right of action in rem is to enable a claimant to found a jurisdiction and to provide the res as security for the claim.”47
(Emphasis supplied)
95. There is a direct nexus between the conferral of a limited legal personality and the adjudicative utility achieved by the conferral. Courts treat the physical property of the ship as a legal person against which certain actions may be taken. Conferring legal personality on the ship allows for actions to be taken independent of the availability or presence of the ship’s owners, who in a great many cases may be in other parts of the world. As a ship may only be in port for a brief period, an action in rem allows the claimant to ensure pre-judgement security. Thus, even absent an express personification, actions against the ship as a legal person ensure the effective adjudication of admiralty disputes.
96. In M V Elisabeth v Harwan Investment and Trading Pvt Ltd.48, this Court noticed the underlying basis of this principle of Admiralty law. Justice Thommen, speaking for a two judge Bench traced the exercise of admiralty jurisdiction by English courts:
“44. …The vital significance and the distinguishing feature of an admiralty action in rem is that this jurisdiction can be assumed by the coastal authorities in respect of any maritime claim by arrest of the ship, irrespective of the nationality of the ship or that of its owners, or the place of business or domicile or residence of its owners or the place where the cause of action arose wholly or in part.”
“…In admiralty the vessel has a juridical personality, an almost corporate capacity, having not only rights but liabilities (sometimes distinct from those of the owner) which may be enforced by process and the decree against the vessel, binding upon all interested in her and conclusive upon the world, for admiralty in appropriate cases administers remedies in rem, i.e., against the property, as well as remedies in personam, i.e., against the party personally…” (Benedict, The Law of American Admiralty, 6th ed., Vol. I p. 3.)
45. Admiralty Law confers upon the claimant a right in rem to proceed against the ship or cargo as distinguished from a right in personam to proceed against the owner. The arrest of the ship is regarded as a mere procedure to obtain security to satisfy judgement….” (Emphasis supplied)
In this view, the conferral of legal personality on a ship sub-served the purpose of business certainty and expediency. The decree against the ship binds all interested in her, and despite her nomadic nature, satisfies the requirement of ensuring pre-judgment security. Besides the UK and India, the attribution of legal personality to ships has been used extensively across jurisdictions. Illustrating the approach of American courts, Professor Douglas Lind traces the evolution of the concept:
“As the United States entered its first century, the greater part of the nation’s trade and commerce, as well as much of the general transportation of persons, occurred on the high seas or along the country’s abundant inland navigable waterways. The constitution had extended the federal judicial power to all cases of admiralty and maritime jurisdiction.
…
[The Brig James Wells v United States] case raised what was quickly becoming a common issue: whether an American registered vessel should be condemned for violating a federal law. The Court held the Brig’s condemnation inevitable. Noteworthy is the fact that while the case was styled in the name of the vessel, neither the term ‘maritime lien’ nor ‘in rem, appears, and there is no suggestion that the ship itself, rather than those in charge of it, was the offender
… The practice of naming an action against a vessel did not, however, attest to the idea of vessel personification. The Court treated actions styled against a vessel as including everyone with an interest in her as “a party to the suit.”
…
Numerous cases had troubled the federal courts regarding enforcement of liens when the principals (owners, masters) with interests in a ship had no active role or prior knowledge of the wrongdoing alleged. Traditional law of agency, with the ship as agent, worked against a coherent rule of responsibility and recovery … Given the peculiar vitalism of the ship in lore, literature, and poetry, it took only a slight conceptual shift in the legal mind for the federal courts to assume the “mental mode” of adaptation to [the] reality of the vitalism of the ship. The doctrine gave the courts the “control of the environment” over maritime law that they had been lacking … with the doctrine of the personality of the ship, the Supreme Court inverted the relationship of agency, making the ship the principal rather than the agent. In this way, the “desirable consequences” of a coherent, workable admiralty jurisdiction seemed possible. The doctrine of the personality of the ship, that is, became a central hallmark of nineteenth century American admiralty law because it appeared to the Supreme Court “to be good in the way of belief” … The idea originated in the practical efforts of the Supreme Court, especially Justices Marshall and Story, to meet critical social and political needs of the new American republic.”49 (Emphasis supplied)
97. The experience of American courts was that owners of offending ships regularly avoided the jurisdiction of courts. The existing law of the day was inadequate to address the situation. The judges of the American Supreme Court therefore utilised the existing non-legal practice of anthropomorphising the ship and gave it legal significance by conferring legal personality on vessels within their jurisdiction. Significantly, the existing law of agency was ill equipped to deal with the unique features of Admiralty Law. Allowing actions against ships then created a vehicle through which the obligations of those with an interest in the ships and her actions, though outside the jurisdiction of courts, would be fulfilled by the recognition by the law of the personality of the maritime vessel. Perhaps even more so than in the case of English admiralty courts, the American experience demonstrates that the conferral of legal personality on ships was a result of historical circumstances, shortcomings in the existing law and the need of courts to practically and effectively adjudicate upon maritime claims. Over the course of several cases, the American Supreme Court solved the practical difficulties of attribution and agency by making the ship a distinct legal person for the purposes of adjudicating maritime claims.
History, necessity and convenience
98. These observations are true even beyond the realm of admiralty law. Bryant Smith in a seminal article titled “Legal Personality” published in 1928 in the Yale Law Journal50 states that ordinarily, the subjects of rights and duties are natural persons. However, he goes on to note that:
“… for some reason or other, it becomes necessary or convenient to deal with an inanimate object such as a ship, or with a human being in a multiple capacity, as a trustee or a guardian, or with an association of human beings in a single capacity, as a partnership or a corporation. A merchant, for example, who has furnished supplies for a voyage, or a boss stevedore who has renovated the ship, cannot reach the owner of the vessel, who is outside the jurisdiction. The obvious solution is to get at the ship itself and, through it, satisfy the owner’s obligations. But to devise a new system of jurisprudence for the purpose, to work out new forms and theories and processes, would too severely tax the ingenuity of the profession. The alternative is for the judges to shut their eyes to the irrelevant differences between a ship and a man and to treat the ship as if it were a man for the purpose of defending a libel.
…
It is true, of course, that the benefits and burdens of legal personality in other than human subjects, on ultimate analysis, result to human beings, which, we have no doubt, is what the writers above cited mean. But the very utility of the concept, particularly in the case of corporate personality, lies in the fact that it avoids the necessity for this ultimate analysis.
…
But, though the function of legal personality, as the quotation suggests, is to regulate behaviour, it is not alone to regulate the conduct of the subject on which it is conferred; it is to regulate also the conduct of human beings toward the subject or toward each other. It suits the purposes of society to make a ship a legal person, not because the ship’s conduct will be any different, of course, but because its personality is an effective instrument to control in certain particulars the conduct of its owner or of other human beings.”
(Emphasis supplied)
The above extract affirms Salmond’s observations that the choice of corpus (i.e. the object) on which legal personality is conferred is not based on strict legal principle but is an outcome of historical circumstances, legal necessity and convenience. Historical circumstances require courts to adjudicate upon unique factual situations. In American admiralty law, the increase in maritime expeditions coupled with the conferral of admiralty jurisdiction on the United States Supreme Court led to an influx of cases involving maritime claims. The existing law of the day did not allow the court to effectively adjudicate upon these new claims, leading to inequitable, absurd or perverse outcomes. Hence, legal innovation was resorted to by courts. Both Lind and Smith highlighted several problems arising from the uniqueness of the ship itself – a vessel travelling across multiple jurisdictions, whose owners may reside in jurisdictions other than those where they are sought to be acted against and have little knowledge of, or control, over the operation of the ship. The conferral of legal personality on the ship did not change the behaviour of the ship. It however created a legal framework within which the interactions between natural persons and the ship could be regulated to achieve outcomes at a societal level which are satisfactory and legally sound.
99. Both authors note that the existing personification of the ship required courts to make but a small conceptual leap of faith, which resulted in significant legal benefits for courts. This point is of greater historical than legal significance for it cannot be stated that where there is no personification of an object, a court is barred from conferring legal personality. Arguably, the independent legal personality conferred on a corporation by acts of the state involved a far greater conceptual leap. Yet it was deemed necessary and has since crystallised into a foundational principle in the law of corporations.
100. There exists another reason to confer legal personality. Objects represent certain interests and confer certain benefits. In the case of some objects, the benefits will be material. The benefit may extend beyond that which is purely material. An artificial legal person, whether a ship or a company cannot in fact enjoy these benefits. The ultimate beneficiaries of such benefits are natural persons. However, requiring a court, in every case, to make the distinction between the artificial legal person and the natural persons deriving benefit from such artificial person is inordinately taxing, particularly when coupled with the increasing use of corporations and ships. This leads us to the third rationale for conferring legal personality – convenience. The conferral of legal personality on objects has historically been a powerful tool of policy to ensure the practical adjudication of claims. By creating a legal framework, it equipped the court with the tools necessary to adjudicate upon an emerging class of disputes. It saved considerable judicial effort and time by allowing judges to obviate the distinction between artificial and natural persons where it was not relevant. The conferral of legal personality was thus a tool of legal necessity and convenience. Legal personality does not denote human nature or human attributes. Legal personality is a recognition of certain rights and duties in law. An object, even after the conferral of legal personality, cannot express any will but it represents certain interests, rights, or benefits accruing to natural persons. Courts confer legal personality to overcome shortcomings perceived in the law and to facilitate practical adjudication. By ascribing rights and duties to artificial legal persons (imbued with a legal personality), the law tackles and fulfils both necessity and convenience. By extension, courts ascribe legal personality to effectively adjudicate upon the claims of natural persons deriving benefits from or affected by the corpus upon which legal personality is conferred. The corollary of this principle is that the rights ascribed by courts to the corpus are limited to those necessary to address the existing shortcomings in the law and efficiently adjudicate claims.
101. This principle is concisely articulated by Phillip Blumberg:
“Distinguished by their particular legal rights and responsibilities, each class of legal unit is unique. They include legal subjects as disparate as individuals, maritime vessels, physical objects, partnerships, associations, special accounts, funds, economic interest groupings, and governmental agencies, as well as the corporation and the corporate group. In each case, the attribution of rights and responsibilities demarcating the perimeters of legal recognition of the unit reflects all the factors that underlie societal lawmaking: the historical development of the law, changing values and interests, socio-economic and political forces, and conceptual currents.
There are certain fundamental points. First, neither legal rights nor legal units exist “in the air”. Legal rights must pertain to a legal unit that can exercise them. Further, there can be no comprehensive list of legal rights and responsibilities that automatically springs into existence upon recognition of a particular subject as a legal unit. Quite the contrary. It is the recognition of particular rights and responsibilities (principally rights) – one by one – that shapes the juridical contours of the legal unit for which they have been created.
When the law recognises a particular right or imposes a particular responsibility on a presumptive legal unit, this constitutes recognition as a legal unit to the extent of the attribution. Other rights and responsibilities may or may not exist, depending on whether such recognition of the unit in the view of the lawmaker – whether legislator, administrator, or judge – will fulfil the underlying policies and objectives of the law of the time in the area. Further, as society changes, the concept of legal identity and the legal consequences attributed to them inevitably change as well.”51
(Emphasis supplied)
All legal units are not alike. The conferral of legal personality sub-serves specific requirements that justify its recognition. The conferral of juristic personality does not automatically grant an ensemble of legal rights. The contours of juristic personality i.e. the rights and liabilities that attach upon the object conferred with juristic personality, must be determined keeping in mind the specific reasons for which such legal personality was conferred. The limits or boundaries of the rights ascribed to the new legal person must be guided by the reasons for conferring legal personality. The parameters of judicial innovation are set by the purpose for which the judge innovates. An example of this is when courts lift the veil of corporate personality where the conferral of an independent legal personality no longer serves the above goals. The application of the doctrine is defined by its ability to serve the object underlying its creation. The legal innovation will become unruly if courts were to confer legal personality on an object and subsequently enlarge the object’s rights to the point where the original goal of intelligible and practical adjudication is defeated. With this understanding, it is necessary to now turn to the application of these principles with respect to Hindu idols.
The Hindu idol and divinity
102. At the outset, it is important to understand that the conferral of legal personality on a Hindu idol is not the conferral of legal personality on divinity itself, which in Hinduism is often understood as the ‘Supreme Being’. The Supreme Being defies form and shape, yet its presence is universal. In the law of Hindu endowments and in the present proceedings, it has often been stated that legal personality is conferred on the ‘purpose behind the idol’. The present judgment shall advert to the exact legal significance of this statement. For the present, it is sufficient to note that legal personality is not conferred on the
‘Supreme Being’ itself. As observed by this Court in Ram Jankijee Deities v State of Bihar52:
“19. God is omnipotent and omniscient and its presence is felt not by reason of a particular form or image but by reason of a particular form or image but by reason of the presence of the omnipotent. It is formless, it is shapeless and it is for the benefit of the worshippers that there is a manifestation in the images of the supreme being. The supreme being has no attribute, which consists of pure spirit and which is without a second being i.e. God is the only being existing in reality, there is no other being in real existence excepting Him.”
(Emphasis supplied)
103. In 1991, the English Court of Appeal in Bumper Development Corporation Ltd v Commissioner of Police of the Metropolis53 was called to decide the question whether a Hindu temple and a Hindu idol could sue in a court of law. In 1976, an Indian labourer discovered a ‘Siva Natraja’ in Pathur, Tamil Nadu which the labourer subsequently sold to a dealer in religious artefacts. Other artefacts were subsequently found, including a ‘Sivalingam’, and were reinstated in the Pathur temple. In 1982, Bumper Development Corporation purchased the ‘Siva Natraja’ in good faith from a dealer in London who produced a false provenance of the Natraja for the purposes of the sale. The Natraja was subsequently seized by the Metropolitan Police. At trial, the Government of India and the state government of Tamil Nadu intervened, along with the Pathur Temple and the Sivalingam as “juristic persons”. The Court of Appeal engaged in a lengthy discussion on foreign law in English Courts. However, in evaluating the maintainability of the claim by the Pathur temple as a legal entity, the English court made the following observations:
“(1) Neither God nor any supernatural being can be a person in law. A practical illustration of the truth of this statement is that if the endowments were to vest in God as a supernatural being litigation between different temples over their respective rights would be impossible. In any event the same “person” would be both plaintiff and defendant since, as Dr. Mukherjea points out, all Hindus always worship the one Supreme Being. That there is much litigation between temples in India is clear beyond a peradventure.
…
(4) Any juristic person must be capable of identification. This necessitates that ‘person’ having a name or description. Since every Hindu idol is a manifestation of one Supreme Being, one must look elsewhere than to the name of God for an identification. The Pathur Temple bears the name of its founder in its title; and that appears to be the custom in Tamil Nadu. So any idol must in practice be referred to by association with the name of the temple in which it is.” (Emphasis supplied)
104. Hinduism understands the Supreme Being as existing in every aspect of the universe. The Supreme Being is omnipresent. The idea of a legal person is premised on the need to ‘identify the subjects’ of the legal system. An omnipresent being is incapable of being identified or delineated in any manner meaningful to the law and no identifiable legal subject would emerge. This understanding is reflected in the decisions of this Court as well. In Yogendra Nath Naskar v Commissioner of Income Tax, Calcutta54, a three judge Bench of this Court was called upon to determine whether a Hindu idol (or ‘deity’) falls within the definition of an “individual” under Section 3 of the Income Tax Act 1922. Justice V Ramaswami speaking for a three judge Bench of this Court held:
“Sankara, the great philosopher, refers to the one Reality, who, owing to the diversity of intellects (Matibheda) is conventionally spoken of (Parikalpya) in various ways as Brahma, Visnu and Mahesvara. It is, however, possible that the founder of the endowment or the worshipper may not conceive of this highest spiritual plane but hold that the idol is the very embodiment of a personal God, but that is not a matter with which the law is concerned. Neither God nor any supernatural being could be a person in law. But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it. There is no principle why a deity as such a legal person should not be taxed if such a legal person is allowed in law to own property even though in the ideal sense and to sue for the property, to realise rent and to defend such property in a court of law again in the ideal sense. Our conclusion is that the Hindu idol is a juristic entity capable of holding property and of being taxed through its Shebaits who are entrusted with the possession and management of its property.”
(Emphasis supplied)
Legal personality is not conferred on the Supreme Being. The Supreme Being has no physical presence for it is understood to be omnipresent – the very ground of being itself. The court does not confer legal personality on divinity. Divinity in Hindu philosophy is seamless, universal and infinite. Divinity pervades every aspect of the universe. The attributes of divinity defy description and furnish the fundamental basis for not defining it with reference to boundaries – physical or legal. For the reason that it is omnipresent it would be impossible to distinguish where one legal entity ends and the next begins. The narrow confines of the law are ill suited to engage in such an exercise and it is for this reason, that the law has steered clear from adopting this approach. In Hinduism, physical manifestations of the Supreme Being exist in the form of idols to allow worshippers to experience a shapeless being. The idol is a representation of the Supreme Being. The idol, by possessing a physical form is identifiable.
105. An exploration of the method adopted for the conferral of legal personality on Hindu idols and the reason for the conferment is necessary. Chief Justice B K Mukherjea’s, “The Hindu Law of Religious and Charitable Trusts” demonstrates a timeless quality and has significance in understanding the evolution of our law on the subject. Justice Mukherjea notes that even prior to courts regulating the Hindu practice of religious endowments, the clear public interest in regulating properties dedicated for religious purposes, resulted in the practice being regulated by the rulers of the day. He states:
“1.36 … It appears however that from very early times religious and charitable institutions in this country came under the special protection of the ruling authority. In the celebrated Rameswar Pagoda case, it was pointed out by the Judicial Committee that the former rulers of this country always asserted the right to visit endowments of this kind to prevent and redress the abuses in their management.
“There can be little doubt”, thus observed Their Lordships,
“that the superintending authority was exercised by the older rulers.” Mr. Nelson in his Madura Manual says: “… The Dharma Kartas held but little communication one with another and recognised no earthly superior except the king himself. Each was independent of all control and acted altogether as he pleased. This freedom led naturally to gross abuses and the king was compelled occasionally to interfere in the management of some of the churches.”55
(Emphasis supplied)
106. In an article which was published in 2010 in the Economic and Political Weekly, Gautam Patel traces the historical evolution of endowments. He noted the reason for the conferment of personality in law on idols:
“Emperors and rulers routinely donated property and cash for the establishment, maintenance and upkeep of Hindu shrines. When land was made over to a temple, it was in the form of a sanad, or grant, or firman, by edict. The Shrinathji temple at Nathdwara, for instance, was said to have received a firman from the emperor Akbar. Given the colonial obsession with orderliness and documentation, this situation presented a problem – large areas of land were owned, managed and cultivated by shebaits and mohunts who were clearly not the owners. Temples were, by their nature, malleable and apt to grow and change. The entity with some permanence was the idol and it is presumably for that reason that the legal concept of the Hindu idol as a juristic entity owning land evolved. The reason may have been purely fiscal – these lands had to be surveyed, their ownership ascertained, and then assessed for (or exempted from) land revenue and other taxes. But the ownership of land almost always depended on the establishment of a positive act of giving – by firman, sanad or any other instrument that unequivocally shows a dedication of the land to the idol.”56 (Emphasis supplied)
The reasons for the recognition of the idol as an entity in law are intrinsically tied to the historical circumstances in which recognition took place. The setting up of religious endowments by individuals, merchants and rulers is an age-old practice in India. However, the colonial administration in India and English law of the time lacked the legal framework within which to record, tax and ultimately adjudicate upon claims with respect to Hindu religious endowments. Disputes arose with the increase in the value of the properties dedicated. The establishment of courts across the country led to their increasingly having to adjudicate upon claims concerning endowments, idols, and debutter properties.
J.2 Idols and juristic personality
107. English and Indian judges in India were called upon to determine the legal characteristics of Hindu idols and the properties associated with them. In Manohar Ganesh Tambekar v Lakhmiram Govindram57, the plaintiffs were persons interested in the religious foundation of the temple of Dakor and the defendants were recipients of the temple’s offerings. The plaintiff’s prayer was that the court appoint a receiver for the accountable disposal of the offerings made at the temple. On the other hand, the defendants submitted that the temple offerings were their own absolute and secular property. A Division Bench of the Bombay High Court analysed the circumstances in which the case took place and considered the need to confer legal personality on the Hindu idol. The Court, speaking through Justice R West observed:
“For a period extending over several centuries the revenues of the temple seem to have but slightly, if at all, exceeded the outlay required to maintain its services, but recently these revenues have very largely increased. The law which protects the foundations against external violence guards it also internally against mal-administration, and regulates, conformable to the central principle of the institution, the use of its augmented funds.”
108. The Hindu practice of dedicating properties to temples and idols had to be adjudicated upon by courts for the first time in the late nineteenth century. The doctrine that Hindu idols possess a distinct legal personality was adopted by English judges in India faced with the task of applying Hindu law to religious endowments. Property disputes arose and fuelled questions about the ownership of the properties. Two clear interests were recognised as subjects of legal protection. First, there existed the real possibility of maladministration by the shebaits (i.e. managers) where land endowed for a particular pious purpose, ordinarily to the worship of an idol, was poorly administered or even alienated. Second, where the land was dedicated to public worship, there existed the threat that access or other religious benefits would be denied to the public, in particular to the devotees. Where the original founder of the endowment was not alive and the shebait was not the owner of the lands, how were the courts (and through them the State) to give effect to the original dedication? To provide courts with a conceptual framework within which they could analyse and practically adjudicate upon disputes involving competing claims over endowed properties, courts recognised the legal personality of the Hindu idol. It was a legal innovation necessitated by historical circumstances, the gap in the existing law and by considerations of convenience. It had the added advantage of conferring legal personality on an object that within Hinduism had long been subject to personification. The exact contours of the legal personality so conferred are of relevance to the present case to which this judgement now adverts.
109. In conferring legal personality on the Hindu idol, courts drew inspiration from what they saw as factual parallels in Roman law. Justice B K Mukherjea summarises the position:
“…from the fifth century onwards – foundations created by individuals came to be recognised as foundations in the true legal sense, but only if they took the form of Pia Causa, i.e., were devoted to ‘pious uses’ only, in short, if they were charitable institutions. Whenever a person dedicated property whether by gift inter vivos or by will – in favour of the poor or the sick, or prisoners or orphans, or aged people, he thereby created ipso facto a new subject of legal rights – the poor house, the hospital and so forth and the dedicated property became the sole property of the new subject – it became the property of the new juristic person whom the founder had called into being.
…
1…A private person might make over property by way of legacy or gift to a corporation already in existence and might, at the same time, prescribe the particular purpose for which the property was to be employed, e.g., feeding the poor, or giving relief to the sick or distressed. The receiving corporation would be in the position of a trustee and would be legally bound to spend the funds for the particular purpose. The other alternative was for the donor himself to create an institution or foundation. This would be a new juristic person, which depended on its origin on nothing else but the will of the founder, provided it was directed a charitable purpose. The foundation would be the owner of the dedicated property, and the administrators would be the trustees bound to carry out the object of the foundation.”58
(Emphasis supplied)
In Roman law, where property was dedicated to a particular religious or charitable purpose and not to an identified donee, the religious/charitable purpose itself was elevated to the status of a legal foundation. The foundation was a separate legal entity and came to own the dedicated property. Hindu law does not make a distinction between religious and charitable purposes. However, a clear parallel exists in the case of Hindu endowments.
110. In Manohar Ganesh Tambekar, the Division Bench of the Bombay High Court set out the rationale for and the process by which legal personality is conferred on a Hindu idol. Justice West observes:
“The Hindu law, like the Roman law and those derived from it, recognizes, not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also juridical persons or subjects called foundations. A Hindu, who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it, and the ruler will give effect to the bounty … A trust is not required for this purpose: the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English law. In early times a gift placed, as it was expressed, “on the altar of God sufficed to convey to the church the lands thus dedicated.
…
Such a practical realism is not confined to the sphere of law; it is made use of even by merchants in their accounts, and by furnishing an ideal centre for an institution to which the necessary human attributes are ascribed. … But if there is a juridical person, the ideal embodiment of a pious or benevolent idea as the centre of the foundation, this artificial subject of rights is as capable of taking offerings of cash and jewels as of land. Those who take physical possession of the one as of the other kind of property incur thereby a responsibility for its due application to the purposes of the foundation.
…
The law which protects the foundations against external violence guards it also internally against mal-administration, and regulates, conformable to the central principle of the institution, the use of its augmented funds. It is only as subject to this control in the general interest of the community that the State through the law courts recognizes a merely artificial person. It guards property and rights as devoted, and thus belonging, so to speak, to a particular allowed purpose only on a condition of varying the application when either the purpose has become impracticable, useless or pernicious, or the funds have augmented in an extraordinary measure.”
(Emphasis supplied)
111. The decision in Manohar Ganesh Tambekar indicates that the expression of a religious or charitable purpose and the creation of an endowment to effectuate it was adequate. The creation of a trust, as in English law was not necessary. The creation of an endowment resulted in the creation of an artificial legal person. The artificial or juridical person represents or embodies a pious or benevolent purpose underlying its creation. Legal personality is conferred on the pious purpose of the individual making the endowment. Where the endowment is made to an idol, the idol forms the material representation of the legal person. This juridical person (i.e. the pious purpose represented by the idol) can in law accept offerings of movable and immovable property which will vest in it. The legal personality of the idol, and the rights of the idol over the property endowed and the offerings of devotees, are guarded by the law to protect the endowment against maladministration by the human agencies entrusted with the day to day management of the idol.
112. Shortly after the decision in Manohar Ganesh Tambekar, the Madras High Court was called upon to decide a dispute pertaining to the appointment of the head of a Mutt. In Vidyapurna Tirtha Swami v Vidyanidhi Tirtha Swami59, a Division Bench examined the legal character of idols, temples and mutts in some detail. Justice B Ayyangar went to on to observe:
“As already stated, the worshippers are beneficiaries only in a spiritual sense, and the endowments themselves are primarily intended for spiritual purposes, through indirectly and incidentally a good number of people derive material or pecuniary benefit therefrom as office-holders, servants or objects of charity…The question has not been suggested or considered, whether the community itself for whose spiritual benefit the institution was founded and endowed may not be more appropriately be regarded as a corporate body forming the juristic person in whom the properties of the institution are vested and who act through one or more of the natural persons forming the corporate body, these latter being the dharmakartas or panchayats, &c., charged with the execution of the trusts of the institution and possessing strictly limited powers of alienation of the endowments, as defined in the cases cited above. Though a fluctuating and uncertain body of men cannot claim a profit a prendre in alieeno solo, nor be the grantee of any kind of real property (see Goodman v Mayor of Saltash, yet there is high authority for treating such community as a corporation or juristic person in relation to religious foundations and endowments.
…
For all practical purposes however it is immaterial whether the presiding idol or the community of worshippers is regarded as the corporation or juristic person in which the properties are vested, though from a juristic point of view there may be a difference of opinion as to which theory is more scientific. In the words of a recent writer on Jurisprudence (Salmond’s ‘Jurisprudence’ (1902), 346) “the choice of the corpus into which the law shall breathe the breath of a fictious personality is a matter of form rather than of substance, of lucid and compendious expression, rather than of legal principle,” …”
(Emphasis supplied)
The conferral of juristic personality by courts is to overcome existing shortfalls in the law and ensure societally satisfactory and legally sound outcomes. Justice Ayyangar observes that a key societal interest sought to be protected by the conferral of juristic personality on the idol was the protection of the devotees’ interests. Justice Ayyangar notes that such protection could also be achieved by conferring juristic personality on the devotees as a collective. However, given the widespread personification of the idol, he holds that juristic personality should vest in the idol on considerations of practicality and convenience.
113. In Bhupati Nath Smrititirtha v Ram Lal Maitra60, a five judge Bench of the Calcutta High Court was constituted to answer the question whether bequests by a testator to trustees for the establishment of an idol of the Goddess Kali and the worship of the idol after the testator’s death were invalid due to the Hindu law principle which stated that gifts could only be made to sentient beings. The testator in that case had dedicated certain properties to an idol. While the testator died in 1890, the idol was not consecrated until 1894. A question arose as to whether the non-existence of the idol at the time of the testator’s death invalidated the provisions of the will dedicated the property. In an erudite opinion holding that such bequests were valid, Chief Justice Lawrence Jenkins held:
“… but the testator directed all his property to be placed in the hands of persons named by him and subject to certain payments these persons were directed to spend the surplus income which might be left in the sheba and worship of Kali after establishing the image of the Kali after the name of his mother. Now this manifestly was a disposition for religious purposes and such dispositions are favoured by Hindu Law.
…In England it has been held that gifts “for the worship of God” or “to be employed in the service of the Lord and Master” are good. Then does it invalidate the disposition that the discretion is for the spending of the surplus income on the sheba and worship of Kali “after establishing the image of the Kali after the name of my mother.” I think not: the pious purpose is still the legatee, the establishment of the image is merely the mode in which the pious purpose is to be effected.”
(Emphasis supplied)
In his separate opinion, Justice Stephen noted:
“But though a dedication to a deity does not constitute a gift, it has legal effect. The intention of the donor is that the subject-matter of the gift shall be used for doing honour to the deity by worship, and for conferring benefit on the worshippers and the ministers of the deity who conduct it. This worship is properly and I understand necessarily carried out by having recourse to an image or outer physical object, but the image is nothing till inspired by the deity. It is the duty of the sovereign to see that the purposes of the dedication are carried out.”
(Emphasis supplied)
In holding that the non-existence of the idol at the time of the testator’s death did not matter, the opinion of Chief Justice Jenkins clearly demonstrates that the endowed property vests in the purpose itself. As he notes, “the pious purpose is still the legatee.” It is on this purpose that juristic personality is conferred. In recognising the pious purpose as a juristic person, the state gives effect to, and protects the endowment. The idol is the material embodiment of the testator’s gift. As the gift is one to ensure the continued worship of the deity, the idol is a physical manifestation of the testator’s pious purpose. Where courts recognise the legal personality of the idol they are in effect recognising and protecting the testator’s desire that the deity be worshipped.
114. The understanding espoused by the decisions referred to above is concisely summarised by Chief Justice B K Mukherjea in the following terms:
“1.48A.- Principle as to personality of institutions.- Apart from natural persons and corporations, which are recognised by English law, the position under Hindu law is that if an endowments is made for a religious or charitable institution, without the instrumentality of a trust, and the object of the endowment is one which is recognised as pious, being either religious or charitable under the accepted notions of Hindu law, the institution will be treated as a juristic person capable of holding property.
…
1.48B. Idols.- The position as to idols is of a special nature. In the Hindu Debutter, it seems, the position is slightly different, and not the whole endowment, but the idol which as an embodiment of a pious or benevolent idea, constitutes the centre of the foundation and is looked upon as the juristic being in which the Debutter property vests. After all, juristic personality is a mere creation of law and has its origins in a desire for doing justice by providing, as it were, centres for jural relations. As Salmond says: “It may be of as many kinds as the law considers proper,” and the choice of the corpus into which the law shall breathe the breath of fictious personality is a matter of form than of substance.”61
(Emphasis supplied)
115. A Hindu may make an endowment for a religious purpose. There is a public interest in protecting the properties endowed and ensuring that the original pious purpose of the dedicator is fulfilled. The law confers legal personality on this pious purpose. However, as Chief Justice B K Mukherjea notes, it is the idol, as the material manifestation of the juristic person which is “looked upon” as the centre in which the property vests. The idol as an embodiment of a pious or benevolent purpose is recognised by the law as a juristic entity. The state will therefore protect property which stands vested in the idol even absent the establishment of a specific or express trust. The pious purpose, or ‘benevolent idea’ is elevated to the status of a juristic person and the idol forms the material expression of the pious purpose through which legal relations are affected. It is the pious purpose at the heart of the dedication which is the basis of conferring legal personality on the idol and which is the subject of rights and duties. The need to confer juristic personality arises out of the need for legal certainty as to who owns the dedicated property, as well as the need to protect the original intention of the dedicator and the future interests of the devotees. It was open for courts to even confer the personality on the community of devotees in certain situations, but the idol is chosen as a centre for legal relations as the physical manifestation of the pious purpose.
116. The reason for this is outlined in the decision of the Calcutta High Court in Mohatap Bahadur v Kali Pada Chatterjee62. In the distant past, the Maharaja of Burdwan dedicated certain lands for the worship of an idol (the ‘Trilokeswar Shiva’) and tasked the predecessor of the respondent as shebaits for the management of the worship. Subsequent to the dedication, the idol was washed away by the flooding of a river nearby. The Maharaja later built a new idol in the same village. However, the respondents refused to perform worship at the site of the new idol on the ground that the original idol had been washed away. The appellant’s sought a direction compelling the respondents to perform necessary religious rites at the site of the freshly constructed idol. The Bench consisting of Chief Justice Jenkins and Justice Mookerjee held:
“4. …It is clear that the property must have been made out by the Maharajah to the predecessor of the defendant in order that the income might be applied for the worship of the image [of] Trilokeswar Shiva. The question arises whether this trust came to an end when the temple was washed away and the image was broken….
5. …Were the contention of the respondent to prevail the endowment would come to an end, if, as has happened in this case, the land upon which the temple stood was washed away by the action of the river. This view is not supported by any text or any principle of the Hindu law which has been brought to our notice.
6. It is, on the other hand, clearly opposed to the principle recognized by a Full Bench of this court in the case of Bhupati Nath Smrititirtho v. Ramlal Maitra. If then the endowment was not destroyed when the land upon which the temple stood was washed away and the image was broken, what has happened since then to alter the position of the parties? The defendant is in the same position as if he held a service tenure. The land was given to him for definite purpose, namely, that he might apply the income thereof for the purpose of the service of the image established by the Maharaja….”
(Emphasis supplied)
The idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred. The destruction of the idol does not result in the termination of the pious purpose and consequently the endowment. Even where the idol is destroyed, or the presence of the idol itself is intermittent or entirely absent, the legal personality created by the endowment continues to subsist. In our country, idols are routinely submerged in water as a matter of religious practice. It cannot be said that the pious purpose is also extinguished due to such submersion. The establishment of the image of the idol is the manner in which the pious purpose is fulfilled. A conferral of legal personality on the idol is, in effect, a recognition of the pious purpose itself and not the method through which that pious purpose is usually personified. The pious purpose may also be fulfilled where the presence of the idol is intermittent or there exists a temple absent an idol depending on the deed of dedication. In all such cases the pious purpose on which legal personality is conferred continues to subsist.
117. After independence, the principles applicable to the Hindu law of endowments were affirmed by a four judge bench of this Court in Deoki Nandan v Murlidhar63. In 1919, a Hindu testator executed a will bequeathing his lands to the idol (or ‘Thakur’) of Shri Radhakrishnaji. A dispute arose between the direct descendant of the testator and his distant agnates on the management of the Thakur. It was contended that the Thakur was being mismanaged and the public was denied worship. A declaration that the Thakurdwara was a public temple was sought. The issue facing this Court was how to construct the scope of the dedication in the testator’s will. Justice Venkatarama Ayyar, speaking for this Court, held:
“6. …The true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship. In Bhupati Nath Smrititirtha v Ram Lal Maitra it was held on a consideration of these and other texts that a gift to an idol was not to be judged by the rules applicable to a transfer to a ‘sentient being’, and that the dedication of properties to an idol consisted in the abandonment of the owner of his dominion over them for the purpose of their being appropriated for the purposes which he intends. Thus, it was observed by Sir Lawrence Jenkins C.J at p. 138 that “the pious purpose is still the legatee, the establishment of the image is merely the mode in which the pious purpose is to be effected” and that “the dedication to a deity” may be “a compendious expression of the pious purpose for which the dedication is designed”.
7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.”
(Emphasis supplied)
Upon making an endowment, the donor relinquishes all claims to the endowed property. The property now vests in the pious purpose at the heart of the endowment which is recognised as a legal person. The idol forms the material manifestation of the pious purpose and the consequent centre of jural relations. The beneficiaries of the endowment are worshippers and the proper maintenance of worship to the idol is to enable the worshippers to achieve the spiritual benefit of being in communion with the divine.
118. In Yogendra Nath Naskar v Commissioner of Income Tax, Calcutta64, in deciding that a Hindu idol (or ‘deity’) fell within the definition of “individual” under Section 3 of the Income Tax Act 1922, Justice Ramaswami speaking for a three-judge Bench of this Court held:
“6. …It should however be remembered that the juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated and vivified by the Pran Pratishta ceremony. It is not also correct that the Supreme Being of which the idol is a symbol or image is the recipient and owner of the dedicated property.
…
The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated property vests. As observed by Mr. [J]ustice B.K. Mukherjea: “With regard to the debutter… It is not only a compendious expression but a material embodiment of the pious purpose and though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite consistent with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it.” … The legal position is comparable in many respects to the development in Roman Law.” (Emphasis supplied)
The purpose behind the dedication
119. Similar to the conceptual grounding of juristic personality in the case of a ship in admiralty law to personify actions in rem, the material object (i.e. idol), seen as an embodiment of the purpose behind the dedication, was chosen as the site of legal relations. The creation by judicial interpretation of an entity in law sub-served an important function. For it obviated a situation that would arise if, despite a dedication by a Hindu for a pious purpose, there existed no legally recognised entity which could receive the dedication. Such a situation was obviated by the judicially recognised principle that where an endowment is made for a religious or charitable institution and the object is pious, the institution will be treated as a juristic person even in the absence of a trust. Similarly, where the dedication is for an idol to be worshipped, the interests of present and future devotees would be at risk in the absence of a legal framework which ensured the regulation of the dedication made. The conferment of legal personality on the pious purpose ensured that there existed an entity in which the property would vest in an ideal sense, to receive the dedication and through whom the interests of the devotees could be protected. This was for the purpose of fulfilling the object of the dedication and through the performance of worship in accordance with religious texts, ensuring that the devotees realised peace through prayer.
120. The recognition of juristic personality was hence devised by the courts to give legal effect to the Hindu practice of dedicating property for a religious or ‘pious’ purposes. The founder or testator may choose to dedicate property for the use of a pious purpose. In many of the above cases, this pious purpose took the form of continued maintenance and worship of an idol. There was a clear state interest in giving effect to the will of the founder or testator who has so dedicated property, as well as for ensuring that the property is at all times used for the purpose of the dedication. A legal fiction was created by which legal personality was conferred on the religious or charitable purpose for which the endowment was made. In the case of a dedication for an idol, the juristic personality finds ‘compendious expression’ in the idol itself. By conferring legal personality, the court gave legal effect to the dedication by creating an entity to receive the properties so dedicated. By stating that the artificial person created is in fact the owner of the dedicated properties, the court guarded against maladministration by the shebait. Even though the artificial legal person cannot sue without the assistance of a natural person, a legal framework was brought into existence by which claims for and against the dedicated property could be pursued.
121. Though conceptually courts attributed legal personality to the intention of the founder, a convenient physical site of legal relations was found in the physical idol. This understanding is reiterated by this Court’s observations in Deoki Nandan that the idol is a “compendious expression” of the testator’s pious purpose. The idol, as a representation or a “compendious expression” of the pious purpose (now the artificial legal person) is a site of legal relations. This is also in consonance with the understanding that even where an idol is destroyed, the endowment does not come to an end. Being the physical manifestation of the pious purpose, even where the idol is submerged, not in existence temporarily, or destroyed by forces of nature, the pious purpose recognised to be a legal person continues to exist.
122. The extent to which the doctrine arose out of legal necessity and convenience is exemplified by Justice Ayyangar in Vidyapurna Tirtha Swami v Vidyanidhi Tirtha Swami65 when the learned judge noted that it was even possible, by legal fiction, to recognise the community or collective of devotees as a single legal person. As he noted, this would have equally served the court’s goals of creating an adequate legal framework for protecting the dedicated properties and the interests of the devotees. However, the court notes that, as there was no “practical” difference, the legal fiction was applied to the idol and not to the devotees for the sake of simplicity. This course of precedent denotes how the continued personification of the idol in religious practice laid the foundations for the court to choose the idol as the site of legal relations.
123. The recognition of the Hindu idol as a legal or “juristic” person is therefore based on two premises employed by courts. The first is to recognise the pious purpose of the testator as a legal entity capable of holding property in an ideal sense absent the creation of a trust. The second is the merging of the pious purpose itself and the idol which embodies the pious purpose to ensure the fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person. The property endowed to the pious purpose is owned by the idol as a legal person in an ideal sense. The reason why the court created such legal fictions was to provide a comprehensible legal framework to protect the properties dedicated to the pious purpose from external threats as well as internal maladministration. Where the pious purpose necessitated a public trust for the benefit of all devotees, conferring legal personality allowed courts to protect the pious purpose for the benefit of the devotees.
124. Having set out the history and the underlying basis of the legal innovation surrounding the conferral of juristic personality on Hindu idols, it becomes necessary to advert to the principle question before us. The present case turns, in a significant measure, on the answer to the contention urged on behalf of the plaintiffs in Suit 5 that the first and second plaintiffs – Bhagwan Sri Ram Virajman and Asthan Shri Ram Janam Bhumi are juristic persons. If this contention is accepted, this Court will then be required to adjudicate upon the legal consequences of the second plaintiff being declared a juristic person.
J.3 Juristic personality of the first plaintiff
125. For the devotees of Lord Ram, the first plaintiff in Suit 5, “Bhagwan Sri Ram Virajman” is the embodiment of Lord Ram and constitutes the resident deity of Ram Janmabhumi. The faith and belief of the Hindu devotees is a matter personal to their conscience and it is not for this Court to scrutinise the strength of their convictions or the rationality of their beliefs beyond a prima facie examination to ascertain whether such beliefs are held in good faith.
126. The oral and documentary evidence shows that the Hindu devotees of Lord Ram hold a genuine, long standing and profound belief in the religious merit attained by offering prayer to Lord Ram at the site they believe to be his birth- place. Evidence has been led by the plaintiffs in Suit 5 to show a long practice of Hindu worship to Lord Ram at the disputed site. The travel logs of Joseph Tieffenthaler in the eighteenth century and Robert Montgomery Martin in the early nineteenth century record the prevalence of Hindu worship at the disputed site. They also reference special occasions such as Ram Navmi during which Hindu devotees converged upon the Janmasthan from distant areas motivated by the desire to offer prayer to Lord Ram. The continued faith and belief of the Hindu devotees in the existence of the Janmasthan below the three domed structure is evidenced by the activities of the Nirmohis, individual devotees such as Nihang Singh and the endless stream of Hindu devotees over the years who visited the disputed site. This is testament to the long-held belief in the sanctity of the disputed site as a place of worship for the Hindu religion. It is not necessary to the determination of the legal personality of the first plaintiff in Suit 5 to establish whether the devotees believed that the exact spot under the central dome was the birth-place of Lord Ram or whether the faith and belief of the devotees itself can confer title. These questions are addressed at a later part of this judgement. For the present purposes, it is sufficient to note that the factum of Hindu belief in the sanctity of the disputed site is established by evidence.
127. For the purposes of recognising a legal person, the relevant inquiry is the purpose to be achieved by such recognition. To the extent such purpose is achieved, the form or corpus of the object upon which legal personality is conferred is not a matter of substance but merely a question of form. As observed by Salmond, so long as the conferral of legal personality serves the purpose sought to be achieved, legal personality may even be conferred on an abstract idea. In the case of Hindu idols, legal personality is not conferred on the idol simpliciter but on the underlying pious purpose of the continued worship of the deity as incarnated in the idol. Where the legal personality is conferred on the purpose of a deity’s continued worship, moving or destroying the idol does not affect its legal personality. The legal personality vests in the purpose of continued worship of the idol as recognised by the court. It is for the protection of the continued worship that the law recognises this purpose and seeks to protect it by the conferral of juristic personality.
128. In addition to the continued worship of the deity, legal personality is conferred on Hindu idols to provide courts with a conceptual framework within which to practically adjudicate disputes involving competing claims over disputed property endowed to or appurtenant to Hindu idols. In order to adjudicate disputes, the court locates a site of jural relations to determine proprietary claims, maladministration by shebaits and protect the interests of devotees. The law thus protects the properties of the idol even absent the establishment of a specific or express trust. In the proceedings before us, the legal rights and properties of the first plaintiff in Suit 5 were in dispute. However, no submissions were made challenging the legal personality of the first plaintiff. Significantly, Dr Rajeev Dhavan, learned Senior Counsel appearing for the plaintiffs in Suit 4 admitted the juristic personality of the first plaintiff. The question of the legal personality of the first plaintiff is distinct from the properties that appertain to the first plaintiff. The determination of the properties that vest in the deity is discussed in light of the competing claims to the property later in this judgement.
129. In the present case, the first plaintiff has been the object of worship for several hundred years and the underlying purpose of continued worship is apparent even absent any express dedication or trust. The existence of the idol is merely a question of form, or corpus, and the legal personality of the first plaintiff is not dependent on the continued existence of the idol. At the heart of the present dispute are questions pertaining to the rightful manager of the deity and the access of the devotees of Lord Ram to the idols. To ensure the legal protection of the underlying purpose and practically adjudicate upon the dispute, the legal personality of the first plaintiff is recognised.
J.4 Juristic personality of the second plaintiff
Submissions
130. Mr K Parasaran, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5 urged that the second plaintiff is a juristic person. He submitted that in Hindu Law the concept of a juridical person is not limited to idols. According to Mr Parasaran, the relevant question is whether prayer is offered to the deity and not the form in which the deity appears. It was contended that
“Asthan Sri Ram Janam Bhoomi” is an object of worship and personifies the spirit of the divine. The faith of the devotees regards the land as a deity and prayer is offered to it. Hence, it was on this basis that the plaintiffs in Suit 5 submit that this court must confer juristic personality on the land represented as Ram Janmasthan. To support this contention, it was urged that God is shapeless and formless and there is no requirement that the object of worship be an idol. It was urged that the performance of the parikrama (circumambulation) around the disputed spot with the faith and belief that it is the birth-place of Lord Ram delineates the boundaries of the property on which the status of a juristic entity must be conferred. To support this contention, Mr Parasaran relied on the following decisions, which shall be adverted to in the course of the judgment: Manohar Ganesh Tambekar v Lakhmiram Govindram66, Bhupati Nath Smrititirtha v Ram Lal Maitra67, Rampat v Durga Bharthi68, Ram Brahma v Kedar Nath69 , Madura, Tirupparankundram v Alikhan Sahib70, The Board of Commissioners for Hindu Religious Endowments, Madras v Pidugu Narasimhan71, TRK Ramaswami Servai v The Board of Commissioners for the Hindu Religious Endowments, Madras72, The Poohari Fakhir Sadavarthy of Bondipiputram v The Commissioner, Hindu Religious and Charitable Endowments,73 Venkataramana Murthi v Sri Rama Mandhiram74, Sastri Yagnapurushad Ji v Muldas Bhudardas Vaishya75, Yogendra Nath Naskar v CIT, Calcutta76, Kamaraju Venkata Krishna Rao v Sub Collector, Ongole77, Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass78; and Thayarammal v Kanakammal79.
131. Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5 adopted the submissions of Mr Parasaran that the second plaintiff in Suit 5 is a juristic person. He urged that there is a distinction between:
(i) the land being a deity; (ii) the land being the abode of a deity; and (iii) the land being the property of a deity. It was urged that in the present case, the land constituting the disputed site, is an object of worship and is itself the deity. Mr Vaidyanathan urged that the determination of the second plaintiff as a juristic person renders infructuous questions of possession, joint-possession or adverse possession as the land itself is a legal person and no other person can possess a legal personality. It was urged that the mere fact that a mosque existed at the disputed site cannot evidence a claim of either title or joint possession on behalf of the Sunni Waqf Board. By an extension of the same argument, once it is held that the disputed site is a juristic person, no partition of the land can be affected as a deity, recognised as a legal person is impartible and cannot be divided. Any division of the property will amount to a destruction of the deity. It is on this basis that the impugned judgment of the High Court directing a three-way division of the property was challenged. Reliance was placed in this regard on the decisions in Pramatha Nath Mullick v Pradyumna Kumar Mullick80, Idol of Thakurji Shri Govind Deoji Maharaj, Jaipur v Board of Revenue, Rajasthan81, and Profulla Chorone Requitte v Satya Chorone Requitte82.
132. Mr Vaidyanathan submitted that the disputed property, being a legal person, is res nullius. Since the disputed property is a juristic person, it is not alienable. It was contended that land which is res nullius or res extra commercium cannot be acquired by adverse possession. It was urged that even if the image of the idol is broken, a deity is immortal and thus, the construction of the mosque on the land did not take away from its character as a deity. Reliance was placed on the decisions in Mahant Ram Saroop Dasji v SP Sahi, Special Officer-in-Charge of the Hindu Religious Trusts83, Ram Jankijee Deities v State of Bihar84, Amrendra Pratap Singh v Tej Bahadur Prajapati85, Thayarammal v Kanakammal86 and Rajasthan Housing Board v New Pink City Nirman Sahkari Samiti Limited87.
133. On the other hand, Dr Rajeev Dhavan, learned Senior Counsel appearing for the Sunni Central Waqf Board, the plaintiffs in Suit 4, urged that the ‘Asthan Ram Janma Bhumi’ (the second plaintiff in Suit 5) is not a juristic person. He submitted that the contention that the disputed land is a juristic person was raised for the first time only in 1989. Dr Dhavan urged that there are two separate and distinct issues that have arisen before this Court. One concerns the faith and belief that Lord Ram was born in Ayodhya and the evidence adduced to this effect. The other is the set of legal consequences that flow from the disputed property being elevated to the status of a juristic person. Dr Dhavan submitted that while the faith and belief of a sect that religious significance attaches to the birth-place of Lord Ram cannot be questioned, the precise site which constitutes the place of birth is in dispute. Moreover, the property cannot be elevated to the status of a juristic person only on the basis of faith and belief that it is the birth- place of Lord Ram. To this end, it was submitted that the subjective belief of a certain section of devotees cannot lead to the objective consequence of a proprietary claim in law. It was urged that in the Vedic period, the worship of physical objects of nature was practiced in ancient India. Underlying the worship of the object was the purpose it served. Dr Dhavan contended that the status of juristic personality does not attach to every object of religious significance, and that a positive act of sanctification or recognition is required.
134. Dr Dhavan further submitted that the conferment of legal personality on immoveable property is not supported by the existing law on the legal personality of Hindu idols and that conferring legal personality on land would be an innovation leading to the insulation of land from any form of adjudication. Legal impregnability would be conferred merely on the basis of the faith and belief of devotees. It was urged that the conferral of juristic personality on the second plaintiff would create two legal regimes – one applicable to idols and the other to land – both with distinct rights, power, duties and interests. Dr Dhavan drew a distinction between the applicable regime governing the idol and the regime governing land (as emerging from the submissions of the plaintiffs in Suit 5) in the following terms:
(i) The legal regime applicable to the first plaintiff as a recognised Hindu idol – properties of the idol vest in it in an ideal sense; any claim to title is actionable only at the behest of the shebait (unless the shebait has acted contrary to the interests of the idol); and the law of adverse possession and limitation would apply to claims involving property owned by the idol; and
(ii) The legal regime applicable to the second plaintiff – juristic recognition would be premised on the subjective belief of the devotees that the area is a deity; the conferral of juristic personality renders infructuous any competing proprietary claims; and the law of limitation and adverse possession are inapplicable to the property in question.
135. Dr Dhavan argues against accepting any consequence as it emerges based on the above distinction. Dr Dhavan contended that the conferral of juridical personality on the second plaintiff would carve out a sphere of legal impregnability. He submitted that while recognising the idol as a legal person is legally defensible and consistent with the jurisprudence of this Court, conferring legal personality on land itself is a legal innovation conferring rights that are not available to the first plaintiff. It was finally urged that no distinction must be drawn between Indic religions and other religions and no plea for constitutional protection could be taken by the plaintiffs in Suit 5 in what is essentially a civil matter. This would result in the faith and belief of one religion influencing the outcome of a civil adjudication on private rights between two religious communities.
These rival submissions will now be analysed.
Distinguishing religious significance and juristic personality
136. Recognition of the religious significance of a place as a place of public worship is conceptually distinct from recognising the place as a juristic person. Ram Janmabhumi is undoubtedly of religious significance to the Hindus based on the faith and belief that it is the birth-place of Lord Ram. A determination by this Court of whether or not the disputed site is a juridical person will not in any manner detract from the significance of the faith and belief of the Hindu community.
137. To support their contention that the second plaintiff is a juristic person, learned Senior Counsel appearing for the plaintiffs in Suit 5 relied on a wealth of precedent. A close reading of those decisions indicates that the counsel have selectively relied on extracts to support the contention that the disputed site is a juridical person. To determine the extent to which they support the contentions urged by the plaintiffs in Suit 5, it would be necessary now to analyse the cases relied upon and examine the context in which they were adjudicated.
138. In Manohar Ganesh Tambekar v Lakhmiram Govindram88, the plaintiff instituted a suit as a party interested in the maintenance of the religious foundation of the temple dedicated to a deity. The plaintiff sought to make the defendants, who were the recipients of the offerings at the temple, accountable as trustees proper. The defendants claimed that they were the absolute owners and held all offerings as private property. A Division Bench of the Bombay High Court held that while private guilds may exist, under English law an association consisting of a fluctuating or undefined class of individuals, whether or not it exists for charitable purposes, cannot be vested with property without incorporation. The defendants however put themselves forward as a body of proprietors with revenue arising from the accumulated offerings of articles of value laid at the feet of the idol. The Court, speaking through Justice R West observed:
“9. The evidence recorded in the case, including that of many donors to the idol Shri Ranchhod Raiji, shows that having discharged a religious duty or gained religious merit by a gift to the deity, the votary is but little interested in what afterwards becomes of the offering …. Still he must needs be and is concerned in the maintenance of a decent and orderly worship. …He desires a regular and continuous or at least a periodical round of sacred ceremonies, which might fail if the offerings of past years were all squandered, while those of any given year fell short. The sevaks seem to have received the offerings, both of immovables and of moveables, with a consciousness, though but a hazy consciousness, that they were bound, out of the funds thus coming to them, to provide for the worship of the idol and the convenience of the pilgrims who resort to the temple.” (Emphasis supplied)
The sevaks (defendants) admitted to their responsibility to take care of the temple. Articles of value were to be consigned to the bhandari. It is in this context that the Court held:
“11. … Mr. Macpherson admitted for the defendants in this case that they could not sell the lands bestowed on the idol Shri Ranchhod Raiji. This restriction is like the one by which the Emperor forbade the alienation of dedicated lands under any circumstances Vyav. May., Chap. IV, S. VII, p. 23; Nov. 120, cap., 10. It is consistent with the grants having been made to the juridical person symbolized or personified in the idol at Dakor. It is not consistent with this juridical person’s being conceived as a mere slave or property of the sevaks whose very title implies not ownership, but service of the god. It is indeed a strange, if not wilful, confusion of thought by which the defendants set up the Shri Ranchhod Raiji as a deity for the purpose of inviting gifts and vouchsafing blessings, but, as a mere block of stone, their property for the purpose of their appropriating every gift laid at its feet.. But if there is a juridical person, the ideal embodiment of a pious or benevolent idea as the centre of the foundation, this artificial subject of rights is as capable of taking offerings of cash and jewels as of land.”
(Emphasis supplied)
The decision clarifies that an idol as a juridical person is the “ideal embodiment” of a pious or benevolent idea. The status of a juristic person was conferred on the idol as an entity which encompasses the purpose itself in which capacity the properties and offerings vest. The observations in this case affirm the position that juridical personality was conferred on the pious purpose and the property endowed or accumulated did not itself become a juristic entity. It is not the property endowed which is a juridical person – it is the idol which as an embodiment of a pious purpose which is recognised as a juristic person, in whom the property stands vested.
139. In Rampat v Durga Bharthi89, the respondent claimed, as Mahant of the ‘Asthan’ as well as under the deed of settlement, that he was entitled to recover properties which appertain to the ‘Asthan’ of Parela. One Mr Ghattari constructed a monastery (‘Asthan’) at Parela and consecrated its building towards the service of his ascetic brotherhood and purchased the suit villages for the maintenance of the institution. Justice Nazir Hasan speaking for the Oudh Judicial Commissioner’s Court on the nature of the ‘Asthan’ held:
“In my opinion, the Asthan at Parela, as founded, was completely in accordance with the type of monasteries of the old days. The several legal concepts which emerge out of the foregoing narrative may be stated to be as follows: (1) It is a congregation of Sannyasis, celibates and ascetics, who has entirely cut themselves off from worldly ties. (2) The properties appertaining to the Asthan are held in trust for the purposes of the Asthan. (3) The purposes of the Asthan are maintenance of the devotees and propagation of charities. (4) The head of the Asthan is the trustee of the institution and of the properties attached to it….An Asthan therefore is essentially an institution of Sannyasis, celibates and ascetics – having no wordly connection either of wealth or of family.”
(Emphasis supplied)
In this view, the ‘Asthan’ was not a building but a seat of religious learning. The nature of the ‘Asthan’ abundantly clarifies that is was not treated as corporeal property, but a charitable institution of learning which was considered to be the juridical person. The physical property that was the monastery was not treated as a juristic person. The court concluded that it was the charitable institution as a juristic person in which the suit villages vested.
140. In Rambrahma Chatterjee v Kedar Nath Banerjee90, the respondents instituted a suit for a declaration that they were entitled to participate in the bhog offered to three idols which were consecrated by the common ancestors of the respondents and the appellant. A temple was constructed, and properties were dedicated to the idols. The respondents, as descendants of the founders through their daughters claimed a practice of participating in the bhog and the courts below found that the descendants in the male line had consistently been shebaits. The question which arose for determination was whether it was competent for the founder to direct that the shebaitship should be vested in the descendants through the son and that the descendants through the daughters have a right to participate in the bhog offering. The High Court of Calcutta, held as follows:
“…a charitable corporation, in so far as it is charitable, is the creature of the founder…There is no reason why the founder, who is competent to provide for the government and administration of the trust, should not be able to give a direction for its management, which is not inconsistent with its character as a religious and charitable trust…The test in each case is, whether the direction given by the founder is inconsistent with the nature of the endowment as a religious and charitable trust and is a colourable device for the evasion of the law of perpetuities.”
The court noted that for over two centuries, shebaitship rights had vested in the descendants through the sons and that the descendants through the daughters exercised a right to participate in the bhog offering. In this context, the court held that it would be slow to interfere with the exercise of these rights over a long duration of time without question and a reasonable presumption will be drawn in favour of such a right. The plaintiffs in Suit 5 relied on the observation in this case that a deity is conceived as a real living being. In this regard, the court noted:
“…There is a fundamental distinction between a gift to a sentient being and an offering or dedication to a deity. Subject to special usages to the contrary, the offerings do not become the property of the officiating priest, but contribute to the maintenance of the shrine with all its rights, ceremonies and charities… It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accuracy; the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest. The dedicated food, known as bhog, is, after completion of the worship, distributed in charity amongst members of the family as also among guests invited and uninvited; for in the oldest Brahminical writings hospitality is regarded as the discharge of a common debt to humanity and the guest is honoured as a divinity. In our opinion, a direction that the descendants of the daughters of the founder should participate in such a distribution of consecrated food, is in no way inconsistent with the purpose of the endowment.”
(Emphasis supplied)
The method of worshipping an established deity as a real person is separate and distinct from the conferral of juristic personality in law. Human personality is distinct from legal personality. The court made a reference to the methods of worship performed for an established deity, which is in accordance with the faith and belief of the worshippers. No question of a juristic person arose in this case.
Madhura Tirupparankundram
141. The plaintiffs in Suit 5 have then placed reliance on the decision of the Privy Council in Madura, Tirupparankundram v Alikhan Sahib91. It was urged that in this case an entire hill, as a place of public worship, was recognised as a juristic person on the basis of the circumambulation performed around it. Consequently, in the present case, the performance of the parikrama around the disputed site should (it has been urged) have the effect of the land being elevated to the status of a juristic person.
142. The Privy Council in Madura Tirupparankundram was concerned with the ownership of a barren hill in the Madura District of Madras. There was a mosque at the highest point of the hill. The Tirupparankundram Temple, represented by its manager, instituted a suit claiming the whole hill as temple property (with the exception of certain cultivated and assessed lands and the site of the mosque). The Mohammedan defendants asserted ownership over the mosque and a portion of the hill known as Nellitope. The Secretary of State claimed to be the owner of all unoccupied portions of the hill. The Subordinate judge of Madura decreed in favour of the Plaintiffs (with the exception of the Nellitope, the mosque itself and the flights of stairs leading to it). The Mohammedan defendants filed an appeal and the Secretary of State was directed to be a party to the appeal. Despite a finding that the Hindus and Mohammedans had rights over the hill, and without specifying what these rights were, the High Court held that the Government was the owner of the hill. Around the base of the hill, worshippers performed the Pradakshinan by a circumambulation of the hill. This path was also used for processions with the temple car and was known as Ghiri Veedhi. While the judgment of the High Court noted evidence on record that the hill as a whole was worshipped by the Hindu community as a Linga, the question at the heart of the dispute concerned the question of ownership over the unoccupied portions of the hill within the Ghiri Veedhi. Under Lord Clive’s treaty with Azim-ul-Dowlah in 1801, Madura came under the control of the East India Company. The High Court took the view that, post 1801 the entire hill, being part of the village, became Government property.
143. The Privy Council held that acts of ownership had been exercised consistently by the temple for the greater part of a century over all unoccupied portions of the land. Expenses were also incurred for the upkeep of smaller shrines situated within the Ghiri Veedhi. The temple was held to have been in possession of the unoccupied portion of the hill from time immemorial which had been treated by the temple as temple property. The Privy Council held that, save and except the mosque, there was “no evidence of expropriation from the remainder” of the hill. Sir George Lowndes held:
“The only rights which the temple can assert against the respondent are rights which the East India Company granted to them or allowed them to retain…and their Lordships think the evidence shows that the temple was left after 1801 in undisturbed possession of all that it now claims…Their Lordships do not doubt that there is a general presumption that waste lands are the property of the Crown, but they think that it is not applicable to the facts of the present case where the alleged waste is, at all events physically, within a temple enclosure…On the whole their Lordships are of opinion that the appellant has shown that the unoccupied portion of the hill has been in the possession of the temple from time immemorial and has been treated by the temple authorities as their property.”
(Emphasis supplied)
A close reading of the judgment makes it evident that the Privy Council was only concerned with (i) the unoccupied portions of the land and the protection of other proprietary rights in the hill; and (ii) the ownership of the property by the temple. The Privy Council was not concerned with the elevation of the hill itself to the status of a juristic person. There is a distinction between the ownership of the property by the temple, and the conferral of legal personality on land. Where land is owned by a person, it cannot be a juristic person, for no person can own a deity as a juristic person. This case does not further the argument advanced by the plaintiffs in Suit 5 that the disputed property is itself a juristic person.
Temples governed by statutes
144. In The Board of Commissioners for Hindu Religious Endowments, Madras v Pidugu Narasimhan92, the Board framed a scheme on the ground that the institution in question was a temple within the meaning of the Madras Hindu Religious Endowments Act 1863. The respondent instituted a suit challenging the declaration of the institution as a temple under the Act. A Division Bench of the Madras High Court observed that the institution had been in existence for several centuries and had over time become a place of worship. The court observed that the worship must be of sufficient significance to attract public endowments. On an assessment of the events carried on within the institution, the court concluded that there was, within the institution, public religious worship. The High Court held that the Board was thus authorized to frame a scheme under the Act. Justice Varadachariar observed:
“The test is not whether it conforms to any particular school of Agama Sastra; we think that the question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship, they are making themselves the object of the bounty of some superhuman power, it must be regarded as “religious worship.”
145. Mr Parasaran, appearing on behalf of the plaintiffs in Suit 5 argued, on the basis of this extract, that by performing the parikrama around the disputed site with the faith and belief that the disputed site is the birth-place of Lord Ram, the devotees believe that the receive the spiritual benefits of religious worship. This, it was urged, is adequate for this Court to hold that the land constituting the second plaintiff is a juristic person. The observations of the Madras High Court in Pidugu Narasimhan were in the context of assessing whether the performance of the ceremonies amounted to “public religious worship” in order to determine whether the institution in question was a temple under the Act. No question arose of the temple being a juristic person. At best, this case supports the proposition put forth by the plaintiffs in Suit 5 that the nature of worship performed at the disputed site is of a religious nature.
146. Mr Parasaran placed reliance on a decision of the Madras High Court in TRK Ramaswami Servai v The Board of Commissioners for the Hindu Religious Endowments, Madras93 to contend that the presence of an idol is a dispensable requirement with respect to religious worship and that the faith and belief of the worshippers along with the performance of the parikrama around the disputed land is sufficient for a court to confer on the disputed site legal personality. In TRK Ramaswami Servai, a deed of gift was executed declaring that certain land had been endowed to a temple Devasthanam and that a temple was under construction. Besides the donor, two trustees were appointed. In 1937, the Hindu Religious Endowments Board demanded a contribution from the trustees on the assumption that the construction of the temple was complete. This was resisted by the appellants on the ground that the temple was not constructed and that no idol had been installed. The temple was nonetheless declared a temple within the ambit of the Madras Hindu Religious Endowments Act, 1926. Subsequently, a scheme of management was sought to be framed for the temple.
147. Among the various issues addressed by the court, one concerned the existence of a valid temple for the purposes of the Act. The two judges on the Division Bench differed and the case was then referred to a third Judge. Agreeing that there existed a temple for the purposes of the Act, Justice Viswanatha Sastri held:
“…The Hindu law recognizes the validity of dedications for the establishment of a deity and the maintenance of its worship. It is immaterial that the image of the deity has not been established before a gift or bequest is made for it…The test is not whether the installation of an idol and the mode of its worship conform to any particular school of Agama Sastras. If the public or that section of the public who go for worship consider that there is a Divine presence in a particular place and by offering worship at that place, they are likely to be the recipients of the county or blessings of God then, you have got the essential features of a temple as defined in section 9, clause 12, of the Act. The presence of an idol, though an invariable feature of Hindu temples, is not a legal requisite under the definition of a temple in section 9, clause 12, of the Act.”
(Emphasis supplied)
The observations of the court were made in the context of assessing whether the presence of an idol was required for the institution to be defined as a temple under Section 9 of the Madras Hindu Religious Endowments Act, 1926. It was in this context that the court held that the belief of the devotees that they will be the recipients of God’s blessings was sufficient for the institution to be held a temple under the Act. At best, these observations of the court establish that the belief of devotees that there is a divine presence is constitutive of a place of public worship. This however, is distinct from the conferral of juristic personality. An adjudication that an institution is a temple for the purposes of a statutory enactment is distinct from the issue as to whether the institution possesses juristic personality. The observations in this case were made in the specific context of a statutory definition and cannot be applied to a place a religious worship for which no statutory enactment exists.
148. A similar question was adjudicated upon by the High Court of Andhra Pradesh in Venkataramana Murthi v Sri Rama Mandhiram94, upon which reliance was placed. In this case, the court was required to assess whether an idol was a pre-requisite for a place of worship to be a temple within the purview of the Hindu Religious and Charitable Endowments Act 1951. The court affirmed that the existence of public religious worship and a dedication is adequate for the institution to be declared as a temple under the Act, even absent an idol. This case does not support the case of the plaintiffs in Suit 5.
149. In the decision of this Court in Kamaraju Venkata Krishna Rao v Sub Collector, Ongole95, upon which significant reliance has been placed, the question before a three judge Bench was whether a tank can be considered a charitable institution within the meaning of the Andhra Inams (Abolition and Conversion into Ryotwari Act) 1956. Who granted the Inam in question was not known. The appellant sought a declaration that the property comprised in the Inam be registered in his name. This contention was rejected by the authorities under the Act on the ground that under the records, the Inam was granted to the tank itself and the ancestor of the appellant was merely the manager of the charitable institution, the tank. It was contended by the appellant that even if the Inam was granted for a charitable purpose, the object of the charity was a tank which could not be considered a charitable institution. The three judge Bench of this Court, speaking through Justice KS Hegde held:
“9. From the above discussion, it is seen that under Hindu Law a tank can be an object of charity and when a dedication is made in favour of a tank, the same is considered as a charitable institution. It is not necessary for our present purpose to decide whether that institution can also be considered as a juristic person. Once we come to the conclusion that the inam with which we are concerned in this case was an Inam in favour of the “uracheruvu” (tank) that tank must be considered as a charitable institution under the Act.” (Emphasis supplied)
This Court was only required to assess whether a tank can be considered a “charitable institution” within the meaning of the Andhra Inams (Abolition and Conversion into Ryotwari Act) 1956. Hence, it was categorically clarified that there was no need to advert to whether or not a tank is a juristic person. This case does not further the arguments urged by the plaintiffs in Suit 5.
Shiromani Gurdwara Prabandhak Committee
150. At this stage, it is necessary to advert to the decision of this Court in Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass96. In this case, a two judge Bench held the Guru Granth Sahib to be a juristic person. Mr Parasaran, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5 placed considerable reliance on this decision to contend that this Court has held physical property simpliciter to be a juristic person. Hence, he submitted that there is a legal basis in the jurisprudence of this Court to confer legal personality upon the disputed property. To analyse this contention, it is necessary to consider the case in some detail.
151. In Shiromani Gurdwara, 56 persons moved a petition under Section 7(1) of the Sikh Gurdwaras Act 1925 for a declaration that certain disputed property was a Sikh Gurdwara. Upon the issuance of a notification to this effect, objections were raised that the disputed property was a dharamshala and dera. The Tribunal under the Act dismissed this objection on the ground that the petitioners therein lacked locus. In the meantime, the Shiromani Gurdwara Parbandhak Committee97 claimed that the disputed property was a Sikh Gurdwara and that the “Guru Granth Sahib” was the “only object of worship and it was the sole owner of the gurdwara property.” The Sikh Gurdwara Tribunal decreed in favour of the SGPC and held that the disputed property “belonged to SGPC”.
152. On the basis of a farman-e-shahi issued in 1921, the Revenue Officer had ordered mutation in the name of the “Guru Granth Sahib Barajman Dharamshala Deh”. Thus, the ownership column of the land continued in this name till objections were filed to the declaration of the land as a Sikh Gurdwara. In the appeals before the High Court from the findings of the Tribunal, a contention was raised that the entry in the revenue records in the name of the Guru Granth Sahib was void as it is not a juristic person. The High Court held that the Guru Granth Sahib is not a juristic person and consequently, the mutation in the name of the Guru Granth Sahib was liable to be set aside. It was in this context that this Court was called to adjudicate whether the Guru Granth Sahib is a juristic person, capable of owning the disputed property in its own name.
153. Tracing the evolution of the concept of juristic person, Justice AP Misra noted that recognition in law of a juristic person is to sub-serve the needs of the law and society. The Court held:
“19…When the donor endows for an idol or for a mosque or for any institution, it necessitates the creation of a juristic person.
21…There may be an endowment for a pious or religious purpose. It may be for an idol, mosque, church, etc. Such endowed property has to be used for that purpose. The installation and adoration of an idol or any image by a Hindu denoting any god is merely a mode through which his faith and belief is satisfied. This has led to the recognition of an idol as a juristic person.
27. The aforesaid conspectus visualizes how “juristic persons” was coined to subserve to the needs of the society…Different religions of the world have different nuclei and different institutionalized places for adoration, with varying conceptual beliefs and faith but all with the same end.”
(Emphasis supplied)
Justice Misra further noted:
“29…it is not necessary for “Guru Granth Sahib” to be declared as a juristic person that it should be equated with an idol. When belief and faith of two different religions are different, there is no question of equating one with the other. If “Guru Granth Sahib” by itself could stand the test of its being declared as such, it can be declared to be so.”
“31. Now returning to the question, whether Guru Granth Sahib could be a ‘juristic person’ or not, or whether it could be placed on the same pedestal, we may fist have a glance as the Sikh religion…In the Sikh religion, the Guru is revered as the highest reverential person…
33. The last living Guru, Guru Gobind Singh, expressed in no uncertain terms that henceforth there would not be any living Guru. The Guru Granth Sahib would be the vibrating Guru. He declared that “henceforth it would be your Guru from which you will get all your guidance and answer”. It is with this faith that it is worshipped like a living Guru. It is with this faith and conviction, when it is installed in any gurdwara it becomes a sacred place of worship. Sacredness of the gurdwara is only because of placement of Guru Granth Sahib in it. This reverential recognition of Guru Granth Sahib also opens the hearts of its followers to pour their money and wealth for it. It is not that it needs it, but when it is installed, it grows for its followers, who through their obeisance to it, sanctify themselves and also for running the langer which is an inherent part of the gurdwara.
34. … It cannot be equated with an “idol” as idol worship is contrary to Sikhism. As a concept or a visionary for obeisance, the two religions are different. Yes, for its legal recognition as a juristic person, the followers of both the religions give them respectively the same reverential value….
42…for all the reason, we do not find any strength in the reasoning of the High Court in recording a finding that the
“Guru Granth Sahib” is not a “juristic person”. The said finding is not sustainable both on fact and law.”
The view of the learned judge was that the creation of a juristic person was to ensure the legal protection of the religious beliefs of the faith:
“28. Faith and belief cannot be judged through any judicial scrutiny. It is a fact accomplished and accepted by its followers. This faith necessitated the creation of a unit to be recognised as a “juristic person”. All this shows that a
“juristic person” is not roped in any defined circle. With the changing thought, changing needs of the society, fresh juristic personalities were created from time to time.”
(Emphasis supplied)
154. What emerges from a nuanced reading of the case is this: First, the case did not relate to the conferment of juristic personality on immoveable property. The relevance of this will be considered in the course of this judgement; Second, as a matter of religion, the tenets of Sikhism are opposed to idol worship. Where juridical personality was conferred on the idol in Hindu Law as the physical site of jural relations, the same physical corpus was absent in Sikhism. This Court was thus required to locate a corpus upon which juridical personality may be recognised for it was only consequent to this determination that the court could decide whether the disputed property vested in the Guru Granth Sahib as a juridical person. As stated above, necessity is often the basis of conferring juridical personality. In this case, as it is in the case of the idol in Hindu law, it was legally expedient to recognise the legal personality of the Guru Granth Sahib as the corpus upon which juridical personality would be conferred in order to determine whether the property could vest in the Guru Granth Sahib.
155. The judgment in Shiromani Gurdwara affirms that there is an underlying purpose which is at the heart of conferring legal personality on objects. Different religions are assessed in accordance with their own faith and belief. The absence of idol worship in Sikhism necessitated the conferral of juristic personality on the Guru Granth Sahib which is, according to the tenets of Sikhism, the Guru. Accordingly, it was then held that the disputed property vested in the Guru Granth Sahib.
Thayarammal
156. Lastly, in Thayarammal v Kanakammal98, by way of writings on a stone inscription, the suit properties were dedicated for use by the public as a Dharmachatram (choultry) where travellers and pilgrims could take shelter and be provided with refreshments. The property was “dedicated to the general public as a resting place.” No trustee was mentioned and the witness to the dedication was Lord Thyagaraja himself. The plaintiff claimed to be in occupation of a part of the dedicated property (Schedule A) and alleged that a portion of the Schedule B property was encroached upon by the defendants who were liable to be evicted. The defendants contested the suit on the ground that they had acquired title to the portion of the property by way of a purchase made in a court sale conducted in the course of executing a compromise decree. The High Court concluded that the compromise decree was collusive and that the plaintiff also had no right as an assumed trustee. Accordingly, the Administrator General under the Official Trustees Act 1913 was directed to take over the management of the Trust. The principle question before this Court was whether a trust or charitable endowment had been created.
157. The Court analysed the stone inscription and held that the suit property was dedicated for charitable purposes, and it could not be claimed by the plaintiff as a trustee or the defendant as an owner. However, in the course of the judgment, Justice DM Dharmadhikari speaking for the Court held:
“16. A religious endowment does not create title in respect of the property dedicated in anybody’s favour. A property dedicated for religious or charitable purpose for which the owner of the property or the donor has indicated no administrator or manager becomes res nullius which the learned author in the book (supra) explains as property belonging to nobody. Such a property dedicated for general public use is itself raised to the category of a juristic person. Learned author at p. 35 of his commentary explains how such a property vests in the person itself as a juristic person….The idea is the same, namely, when property is dedicated for a particular purpose, the property itself upon which the purpose is impressed, is raised to the category of a juristic person so that the property which is dedicated would vest in the person so created.”
A close reading of the decision shows that the principle contention urged in the case was that the property described as a Dharmachatram is covered under Section 6(5) of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 as a “charitable endowment”. This Court held that the dedication of property for a Dharmachatram, is in the strict legal sense, neither a gift nor a trust. This Court held that the property which was dedicated for a charitable purpose could not be claimed by the plaintiff as a trustee or the defendant as owner. With this finding, the Court was of the view that it was the Tamil Nadu Hindu and Charitable Endowments Act 1959 which governs the matter and accordingly the suit property shall be taken in control for administration, management and maintenance by the State Government and the Commissioner under the 1959 Act.
158. In assessing the position of the religious charitable institution, this Court made certain observations in para 16 upon which reliance has been placed. The Court proceeded on the premise that the suit property had been dedicated for a specific purpose and could not be owned by the defendant. This was to ensure the protection of the purpose with which the suit property was dedicated. Significantly, the deed of dedication did not identify a manager for the endowed property and the court sought to protect the property by conferring legal personality on the intention behind the endowment. Though the Court assessed the position of law on the basis of the theoretical framework analysed above, the observations extracted above seem to suggest that property itself was elevated to the status of a juristic person. On an overall reading of the case as well as the theoretical exposition which has been adverted to, the observations made have to be read in the light of protecting the purpose behind the endowment and not to suggest that the property itself was conferred legal personality.
Dedication of properties
159. The cases referred to Mr C S Vaidyanathan pertained to the consequence of conferring legal personality by this Court on the disputed land. Far from assisting the contention urged on behalf of the plaintiffs in Suit 5, that the second plaintiff is a juristic person, the cases adverted to above affirm that the practice of conferring legal personality on Hindu idols was evolved by courts to ensure that the law adequately protected the properties endowed to religious purposes. As a large number of endowments were made to specific idols, courts located the idol as a nucleus in which the rights, powers, privileges and immunities of the endowment would vest. Legal personality was conferred to serve the very specific public interest of protecting properties so endowed and creating a centre of jural relations. Necessity mandated the creation and recognition of an entity in law, allowing courts to regulate the legal relations between natural persons and the idol and consequently the properties vested in the idol. These cases will be adverted to in the event the court determines that the second plaintiff is a juristic person.
Faith and belief
160. The decisions and their observations which have been adverted to are premised on the existence of a positive act of dedication or donation. It is pertinent to note that plaintiffs’ claim for the conferment of juristic personality on the land that is the disputed site is not based on an express dedication. It was urged that the spot under the central dome where the idols are placed is the birth- place of Lord Ram. The faith and belief of the worshippers is of paramount importance. Hindus perform the parikrama around the disputed site with the faith and belief that it marks the birth-place of Lord Ram. It has thus been argued that ‘Asthan Shri Ram Janam Bhumi’, as a place of religious worship must consequently be elevated to the status of a juristic person by virtue of the faith and belief of the worshippers. It was contended that the presence of an idol is dispensable in Hinduism, this contemplates a situation such as in the case before us, where the land is itself worshipped as a deity. Devotees pray to the land as the birth-place of Lord Ram, and consequently, the second plaintiff should, it is urged, be recognised as a juristic person.
161. The argument which has been urged on behalf of the plaintiff in Suit 5 is materially different from the case for conferment legal personality on a Hindu endowment. In the case of an endowment, courts have recognised the charitable or religious purpose situated in the institution as a basis for conferring juristic personality on the institution. In doing so, the court recognises the pious purpose of the founder or testator to protect the properties so endowed. However, it is not the case of the plaintiffs in Suit 5 that the property styled as the second plaintiff is debutter property. Rather, by invoking the argument of a “juristic person”, the plaintiffs have urged this Court to create an additional ground for the conferral of legal personality – the faith and belief of the devotees. Amongst the ensemble of arguments advanced before this Court, this innovative legal claim is at the heart of the present dispute.
162. The first difficulty that arises in accepting the contention urged by the plaintiffs in Suit 5 stems from the very practical question of how such immovable property is to be delineated. Unlike the case of endowed properties that are delineated in the instrument or deed of endowment itself, where legal personality is sought to be conferred on the basis of faith and belief of the devotees, the devotees themselves may not agree on the exact contours of this property. The question of delineation weighed on the mind of Justice Sudhir Agarwal who stated:
“1887. What would be the meaning of word “place” and what should be its extent? Whether it would be a small place which normally is required for birth of a human being or whether it will cover an area of the entire room, house, locality, city or sometimes one can say even more that that. We know that Hindus worship rivers and lakes like Ganga, Yamuna, Narmada, Mansarovar etc. They are very sacred and pious. At several places a number of temples etc. on the bank or near the said rivers have been constructed. The very origin of such sacred rivers is also a place of worship for Hindus like Gangotri, Yamunotri (state of Uttaranchal) and Amarkantak (for river Narmada). Can it be said that the entire length these rivers cover would constitute and satisfy the requirement of a “juristic personality”. It is not out of place that at several places, the temple of Ganga, Narmada, Yamuna, etc. have been constructed and they are religious endowments in their own rights, enjoy all such legal rights and obligations, etc as are available to such endowments. Similarly certain hills or mountain or hilly terrains as such are treated to be places of worship like, Kailash, Gobardhan, Kamathgiri etc.”
(Emphasis supplied)
Parikrama
163. Despite these difficulties, the learned judge concluded that ‘Asthan Sri Ram Janam Bhumi’ was a juristic person. It was urged before us that it is not the entirety of Ayodhya that is the juristic person, but only the disputed property. When a question was raised by the Bench as to the physical boundaries of the alleged juristic person, it was urged that the performance of the parikrama (circumambulation) around the disputed property delineated the property which was worshipped as the Janmasthan and it is this property, being divine, upon which the status of a juristic person must be conferred. In this view, the parikrama served to mark the boundaries of the juristic person. On the other hand, Dr Dhavan urged that the parikrama is merely a form of worship and not a method of delineating the boundaries of a property.
164. The parikrama may be performed around a small idol, shrine, temple or land in which the temple is situated. However, its principle purpose is to offer worship to the divine and it is performed with the belief that the parikrama would result in the performer being the recipient of some spiritual benefit. The parikrama is not performed in order to mark the exact boundaries of the property to which juristic personality is conferred. The performance of the parikrama, which is a form of worship conducted as a matter of faith and belief cannot be claimed as the basis of an entitlement in law to a proprietary claim over property.
Ram Jankijee Deities
165. The counsel for the plaintiffs in Suit 5 relied on the observations by this Court in Ram Jankijee Deities v State of Bihar99 to contend that the manner of consecrating a deity is subjective and based on the determination of the devotees. It was submitted that any method of consecration chosen by the devotees is adequate for the conferral of legal personality on the deity. In that case, the question before the court concerned whether the consecration of a deity with a visible image by the performance of appropriate ceremonies led to the establishment of a valid deity upon which juridical personality could be conferred “for the purpose of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961”. Two deeds of dedication were executed – one to the deity, Ram Jankijee and the other to the deity, Thakur Raja. Both deities, recognised as distinct entities, were given separate properties and put in possession through the shebaits. Both deities were located in separate temples within the dedicated property.
166. The Deputy Collector, for the purposes of the fixation of ceiling area, allowed two land units to the deities on the ground that there are separate deities to which the land was gifted. The Collector disagreed and allowed a single unit on the ground that the entire property held by both deities was to be managed by a committee formed under the Religious Trust Board and there was no evidence on the property donated to the deities being treated differently. This Court sought to answer whether the two deities were separate and distinct legal entities. It is pertinent to note that the Single Judge of the High Court held that the image of the deity styled as Thakur Raja (or Raja Rani) was not known to Hindu scriptures and hence, there is no second deity to which a separate dedication could be made. It is in this context that this Court observed, speaking through Justice Umesh Banerjee:
“14. Images according to Hindu authorities are of two kinds: the first is known as swayambhu or self-existent or self- revealed, while the other is pratisthita or established. The Padma Purana says: “The image of Hari (God) prepared of stone, earth, wood, metal or the like and established according to the rites laid down in the Vedas, Smritis and Tantras is called the established images … where the self- possessed Vishnu has placed himself on earth in stone or wood for the benefit of mankind, that is styled the self- revealed.” (B.K. Mukherjea — Hindu Law of Religious and Charitable Trusts, 5th Edn.) A swayambhu or self-revealed image is a product of nature and it is anadi or without any beginning and the worshippers simply discover its existence and such images do not require consecration or pratistha but a man-made image requires consecration. This man-made image may be painted on a wall or canvas. The Salgram Shila depicts Narayana being the Lord of the Lords and represents Vishnu Bhagwan. It is a shila — the shalagram form partaking the form of Lord of the Lords, Narayana and Vishnu.”
The Court then surveyed precedent to hold that while an idol is usually consecrated in a temple, it does not appear to be an essential condition. The Court held:
“16…If the people believe in the temples’ religious efficacy no other requirement exists as regards other areas and the learned Judge it seems has completely overlooked this aspect of the Hindu Shastras — in any event, Hindus have in the Shastras “Agni” Devta, “Vayu” Devta — these deities are shapeless and formless but for every ritual Hindus offer their oblations before the deity. The ahuti to the deity is the ultimate — the learned Single Judge however was pleased not to put any reliance thereon. It is not a particular image which is a juridical person but it is a particular bent of mind which consecrates the image.”
167. All the cases relied on by the Court pertain to the requisites of a temple under various statutes or what constitutes a place of religious worship. The observations of the Court form the basis of locating the centre of worship, which according to it does not need to have a fixed image and is based on the faith and belief of the worshippers. The observations of the Court were in the context of determining whether a valid deity existed to whom a dedication could be made. The question whether the second deity was a distinct legal person arose due to the need to determine the validity of the deed of dedication in favour of the second deity constituting a separate unit for the purposes of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961. It is only consequent to the establishment of a valid deity that the dedicated property would vest in the established deity in the ideal sense.
168. It cannot be said that the observations of the court in respect of the consecration or establishment of a valid deity apply with equal force to the conferral of juristic personality on property on the basis of the faith and belief of the devotees. The rationale underlying the approach adopted by this Court is clarified in the following observations:
“17. One cardinal principle underlying idol worship ought to be borne in mind
“that whichever God the devotee might choose for purposes of worship and whatever image he might set up and consecrate with that object, the image represents the Supreme God and none else. There is no superiority or inferiority amongst the different Gods. Siva, Vishnu, Ganapati or Surya is extolled, each in its turn as the creator, preserver and supreme lord of the universe. The image simply gives a name and form to the formless God and the orthodox Hindu idea is that conception of form is only for the benefit of the worshipper and nothing else”.
(B.K. Mukherjea — Hindu Law of Religious and Charitable Trusts, 5th Edn.)” (Emphasis supplied)
The observations in Ram Jankijee Deities were made in the specific context of consecrating an image based on the faith and belief of devotees for the establishment of a deity to which valid dedications may be made. The observations in this case establish that the existence of a valid deity was not to be tested against Hindu Shastras but on the basis of the faith and belief of the devotees. Once the faith and belief of the devotees had been established, it was an express deed of dedication that resulted in the conferral of juridical personality on the idol. The observations in this case cannot be equated to the elevation of property itself as a juristic person.
169. The court in that case was concerned with whether a specific image of a deity must be tested against Hindu scriptures and it is in this context that the court held that divinity is “formless, shapeless but it is the human concept of a particular divine existence which gives it the shape, the size and the colour.” There is no express deed of dedication in the present case. The case of Ram Jankijee Deities is not an authority for the proposition that the mere faith and belief of the devotees is sufficient for the conferral of juristic personality. While it was adequate for the existence of a place of religious worship, it was on the basis of a deed of dedication that juristic personality was conferred.
The sacred hill
170. In Sir Seth Hukum Chand v Maharaj Bahadur Singh100, the dispute concerned two sects of the Jain community with regard to the rights of worship of a hill of 25 square miles to which religious significance was attached. According to the Digambaras, the sacred nature of the hill demanded that the moment they set foot on the hill, they must abstain from any offence against nature, even spitting. Though this is observed by the Swetambaris as well, the Digambaras adopted a position that any course of action which is inconsistent with their worship, such as the regular and continuous employment of human beings on the hill involves a desecration of the hill.
171. In 1918, the Swetambaris acquired, by purchase, the proprietary rights to the hill from the Raja of Palgunj. Thereafter, sentries and night watchmen were posted on the hill which was accompanied by the construction of dwelling units for them and for other pujaris. The Digambaris contended that the proposed construction of a gate at the foot of the hill was intended to obstruct their access to the hill. A suit was instituted contending that the hill was an object of worship for both sects and on account of its special status, no construction would take place on it. The trial judge held that the plaintiff Digambaris were entitled to ensure that the hill, as endowed property of the deities, is kept in an immaculate condition in accordance with their faith. The High Court reversed this judgment and held that the hill was not debutter property but the property of the Raja of Palgunj, whose title was transferred. Further, the proposed construction of the gate was held not to obstruct the right of worship of the Digambaris.
172. In appeal, the Privy Council examined the evidence on record to conclude that legal title had vested validly in the Raja. The result of previous litigation between the Raja and the Swetambaris had concluded title in favour of the Raja. A suit by the Digambaris in 1903 also admitted the title of the Raja subject to their right to worship. The Privy Council then examined the range of activities that were carried out on the hill without a disruption of the right to worship, and held that it was not proved that any of the acts complained of, barring the placing of the Charans in the three shrines, in the plaint abridged the right to worship.
173. The trial judge concluded that the hill was debutter property of the deities entirely on the belief of its sanctity. Taking exception to these observations, the Privy Council held:
“The Subordinate Judge has based his finding that the whole hill is the debutter property of the jain deities on the belief in its sanctity now entertained by both sects. As observed by Ross, J., that evidence undoubtedly establishes beyond a doubt that in the belief of the Jain community a spiritual quality in some way attaches to the hill, but this is a matter of faith and cannot in itself determine the physical ownership of the hill.” (Emphasis supplied)
The Privy Council explicitly rejected the contention urged by the Digambaris of a proprietary claim which was based on the faith and belief of the sect.
The consequence of absolute title
174. In the present case, the recognition of ‘Asthan Sri Ram Janam Bhumi’ as a juristic person would result in the extinguishment of all competing proprietary claims to the land in question. This conferral of ‘absolute title’ (resulting from the conferral of legal personality on land) would in truth render the very concept of title meaningless. Moreover, the extinguishing of competing claims would arise not by virtue of settled legal principles, but purely on the basis of the faith and belief of the devotees. This cannot be countenanced in law. The conferral of legal personality by courts is an innovation arising out of necessity and convenience. The conferral of legal personality on Hindu idols arose due to the fundamental question of who the property was dedicated to and in whom the dedicated land vested. The two clear interests that the law necessitated protection of were the interests of the devotees and the protection of the properties from mismanagement. In the present case, there exists no act of dedication and therefore the question of whom the property was dedicated to does not arise and consequently the need to recognise the pious purpose behind the dedication itself as a legal person also does not arise.
The Swayambhu argument
175. It is pertinent to note that in reply, Mr Parasaran advanced a slightly different argument. The initial argument advanced on behalf of the plaintiffs in Suit 5 was that the performance of worship at the disputed site with the faith and belief that the place is the birth-place of Lord Ram is sufficient for this Court to confer on the disputed site juristic personality. The argument advanced in reply was that the land is a Swayambhu deity (i.e. self-manifested deity). Mr Parasaran contended that an idol is not necessary in Hinduism for the performance of worship. It was contended that the idol is sacred as a symbol of the divinity, however all worship is done to the one indivisible Supreme Being. The multitude of idols and deities merely constitute different facets of the Supreme Being. Hence, the law must recognize whatever form in which God manifests. It was contended that the second plaintiff was a deity that ‘manifested itself in the land’ and therefore the juristic personality of Ram Janmabhumi vested in the immovable property of the disputed site. In Mr Parasaran’s submission, worship at the disputed site was not offered only to Lord Ram but the very land on which Lord Ram is said to have been born. Reliance in this regard was placed on the existence of several temples where worship was performed despite the absence an idol – most notably at the Chidambaram temple in Tamil Nadu.
176. To establish the legal personality of the second plaintiff, Mr Parasaran urged that as the Ram Janmabhumi is a ‘Swayambhu’ deity, no dedication or consecration is required for the court to recognise its juristic personality. It was contended that the deity, by its very nature necessitated the performance of a parikrama around it, which also delineated the boundaries of the property upon which juristic personality must be conferred. Mr Parasaran contended that the conferral of juristic personality sub-served the need to protect the land itself from being encroached on or alienated. The land is believed to be the birth-place and is treated reverentially by Hindus who have sought to offer worship there. As a consequence, legal personality must be conferred on the land for its protection.
To support these submissions, Mr Parasaran relied on the following authorities: Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP101, Ram Jankijee Deities v State of Bihar102, Yogendra Nath Naskar v CIT, Calcutta103, Bhupati Nath104, Manohar Ganesh Tambekar v Lakhmiram Govindram105, Guruvayur Devaswom Managing Committee v C K Rajan106, Sri Sabhanayagar Temple, Chidambaram v State of Tamil Nadu107, Pinchai v Commissioner, Hindu Religious and Charitable Endowments Board108, Saraswathi Ammal v Rajagopal Ammal109; Kamaraju Venkata Krishna Rao v Sub Collector110, Thayarammal v Kanakammal111, Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass112 and Sapneshwar Pujapanda v Ratnakar Mahapatra113.
177. Dr Dhavan briefly interjected to contend that though Hinduism may recognise a Swayambhu deity, all such instances are characterised by the existence of a physical manifestation. Except the faith and belief of the devotees, no physical manifestation has been forthcoming to separate the disputed site from any other land simpliciter.
178. In Mr Parasaran’s view, even absent any distinguishing feature on the disputed site to evidence the manifestation of divinity, the faith and belief of the devotees is sufficient to recognise that the disputed site is a Swayambhu deity. At the heart of the revised argument raised by Mr Parasaran is that the faith and belief of the devotees alone is sufficient for this Court to recognise the disputed site as a Swayambhu deity and consequently confer upon it legal personality. To this extent, the contention urged by Mr Parasaran in his reply converges with the earlier argument on faith and belief as the sole basis on which juristic personality must be conferred. In both submissions advanced by the plaintiffs in Suit 5, the faith and belief of the devotees is claimed to be the sole basis for the conferral of juristic personality. The contentions on faith and belief have already been analysed above. However, the argument urged that the disputed land is a Swayambhu deity raises additional issues outside the realm of the Hindu Law of endowments. It is to these issues that it is necessary now to turn.
179. Given the range of arguments advanced by the plaintiffs in Suit 5, it is necessary to first advert to the cases relied on in reply. The observations relied on have been selectively extracted and once the context in which the observations were made are fully understood, they do not advance the argument set out by Mr Parasaran.
180. Reliance was placed on Guruvayoor Devaswom Managing Committee v C K Rajan114 to contend that a temple itself is a juristic entity. The dispute concerned the mismanagement of temple affairs by the Devaswom Committee. A three judge Bench of this Court held that devotees could approach a High Court or the Supreme Court by way of public interest litigation where their fundamental rights under Article 25 and 26 of the Constitution were violated by action or inaction on behalf of the state authorities. The only reference to a temple being a juristic person is recorded at paragraph 40 of the judgement. Justice S B Sinha noted:
“40. … A proceeding initiated as a public interest litigation would lie before the High Court or this Court, according to Mr Subba Rao, where it was found that despite existence of statutory provisions the State or the other statutory functionaries were not taking recourse to the provisions thereof for remedying the grievances of the devotees. In any event, as a Hindu temple is a juristic person the very fact that Section 92 of the Code of Civil Procedure seeks to protect the same for the same purpose Article 226 and 32 could also be taken recourse to. Our attention in this behalf has been drawn to Yogendra Nath v. CIT and Manohar Ganesh Tambekar v. Lakhmiram Govindram.”
(Emphasis supplied)
The observation that a temple is a juristic person formed a part of the submissions made by the counsel and was merely preserved by the court as a matter of record. There is no evidence that this Court accepted the contention that the temple is a juristic person. No reliance can be placed on this decision or the observation in paragraph 40 to contend that a temple is a juristic person.
181. Mr Parasaran next relied on Sri Sabhanayagar Temple, Chidambaram v State of Tamil Nadu115 to demonstrate the recorded existence of a temple without any resident idol. The decision records a brief history of the Chidambaram Temple in Tamil Nadu. Justice T Raja, speaking for a Division Bench of the Madras High Court notes:
“…The Chidambaram Temple contains an altar which has no idol. In fact, no Lingam exists but a curtain is hung before a wall, when people go to worship, the curtain is withdrawn to see the ‘Lingam’. But the ardent devotee will feel the divinely wonder that Lord Siva is formless i.e., space which is known as “Akasa Lingam”. Offerings are made before the curtain. This form of worshipping space is called the “Chidambara rahasyam”, i.e. the secret of Chidambaram.”
The decision supports Mr Parasaran’s argument that there can exist a temple without an idol. An idol is one manifestation of the divine and it cannot be said that absent an idol, there exists no divinity to which prayer may be offered. However, the question before the Madras High Court was whether the appellant and his predecessors were the founders of the temple and whether it was a denominational temple for the purposes of state regulation of the temple’s secular affairs. The High Court did not consider whether a temple could be a juristic person and the decision does not support Mr Parasaran’s contention that the mere worship of empty land or ‘space’, absent a physical manifestation could confer juristic personality. Moreover, the facts of the case are materially different from the present case as the Chidambaram Temple is a physical structure built around a specific spot that is considered holy. Despite the absence of an idol, the temple serves as the physical manifestation of the deity and demonstrates the institutional nature of the worship. This is in contrast to the present case. Worship is offered to the idol of Lord Ram. The disputed site is a site of religious significance, but that itself is not sufficient to confer juridical personality on the land.
182. Reliance was also placed on Pichal alias Chockalingam Pillai v The Commissioner for Hindu Religions and Charitable Endowments (Administrations Department) Madras116 to contend that a temple continues to be recognised as a site of public religious worship even absent the presence of an idol. The case concerned the Kalyansundareswarar temple in Avaniyapuram. In the early twentieth century, one Chockalingam Pillai executed a deed of dedication for the construction, installation and continued upkeep for four idols, including Sri Kalyansundareswar. Chockalingam Pillai died in 1926 and by virtue of a compromise deed in 1954 the appellants before the Madras High Court came to be the managing trustees. The appellants were accused of failing in their upkeep and service of the idol and the Commissioner of Hindu Religions and Charitable Endowments framed a scheme to take over management of the temple. The appellants challenged the competence of the Commissioner on the ground that the temple was not a temple under Section 6(20) of the Madras Hindu Religious and Charitable Endowments Act 1959. The primary contention of the appellants was that the idols in the Kalyansundareswarar temple had not been duly installed and consecrated. Justice K Reddy speaking for the Division Bench of the Madras High Court held that the existence of an idol was not necessary for a place of public worship to be a “temple” under Section 6(20) of the said Act. He further observed:
“… It does not appear that the aforesaid idols in the said temples have been installed and consecrated according to the rituals and ceremonies enjoined by Agama Sastras. They have become places of public religious worship by long use of the place as such by the Hindu community. We are, therefore, of the view that the installation and consecration of idols with ceremonies like Prana pratishta etc, prescribed by Hindu Sastras is not the sine qua non for public religious worship. In any event, it is not a legal requisite under the definition of a ‘temple’ in the Act…”
Two points must be noted: First, the observations of the Court are made in the context of satisfying a pre-existing statutory definition of a ‘temple’. It is in this context, that the Madras High Court notes that the existence of an idol is not a pre-requisite to satisfy the statutory definition of a temple. Second, the case does not discuss the question whether a temple, even absent an idol, can be a juristic person. It is pertinent to note that absent an idol, the temple itself had existed for several years. In light of these observations, the decision does not support Mr Parasaran’s argument that absent an idol or any express form of manifestation or recognition, land can constitute a juristic person.
183. Mr Parasaran relied on the decision in Saraswathi Ammal v Rajagopal Ammal117 to argue that the widespread belief and worship of the land styled as Ram Janmbhumi is sufficient to recognise it as a juristic person. The case concerned a settlement deed whereby a widow dedicated in perpetuity the revenue of certain immovable properties for the performance of daily puja and ‘Gurupuja’ of her former husband’s tomb. It was urged by the appellants in the case that the dedication was for the performance of puja and an annual ‘sradh’ on a significant scale, and the dedication was thus for a religious and charitable purpose. In rejecting this contention, Justice B Jagannadhadas, speaking for a three judge Bench of this Court observed:
“6…To the extent, therefore, that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastric basis so far as Hindus are concerned. No doubt since then other religious practices and beliefs may have grown up and obtained recognition from certain classes, as constituting purposes conducive of religious merit. If such beliefs are to be accepted by courts as being sufficient for valid perpetual dedication of property therefor without the lement of actual or presumed public benefit it must be at least shown that they have obtained wide recognition and constitute the religious practice of a substantial and large class of persons. That is a question which does not arise for direct decision in this case. But it cannot be maintained that the belief in this belief of one or more individuals is sufficient to enable them to make a valid settlement permanently tying up property. The heads of religious purposes determined by belief in acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society.” (Emphasis supplied)
The above decision deals with whether a substantial and widespread practice of a large number of Hindus would warrant its recognition as a religious or charitable practice. Further, the court expressly observes it was not necessary to answer this question as the ground of public policy is sufficient to discredit the practice of tomb-worship by a few stray individuals. It does not deal with the question when a court should confer juristic personality, either on an idol or on land. While a particular practice may or may not be recognised by a court as
“religious” or “charitable” depending on the scale of adoption of the practice, a parallel cannot be drawn with the concept of juristic person which operates in an entirely different field of law. The decision does not support the contention that widespread belief in the religious nature of a site is sufficient to confer upon that site legal personality.
Lastly Mr Parasaran sought to rely on two decisions, Sapneswar Pujapanda v Ratkanar Mahapatra118 and Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP119 to contend that the second plaintiff in Suit 5 is a ‘Swayambhu’ deity which has a recognised legal personality. The decisions merely note that Hinduism recognises the concept of a Swayambhu deity, which is not contested by either of the parties to the present dispute. Neither decision advances the argument set out by Mr Parasaran. The substantive content of the arguments advanced by the plaintiffs in Suit 5 is dealt with next.
184. Mr Parasaran submitted that the various deities and idols in Hinduism are merely facets of the single indivisible God. It was thus contended that every manifestation of the indivisible God is worthy of legal protection and the conferment of legal personality.
185. This Court in Yogendra Nath Naskar v CIT, Calcutta120 drew a distinction between the perception of the devotee that the idol is a manifestation of the Supreme Being and the position in law that legal personality is conferred on the pious purpose of the testator that is entitled to legal protection. Hinduism is an expansive religion that believes divinity in the form of the Supreme Being is present in every aspect of creation. The worship of God in Hinduism is not limited to temples or idols but often extends to natural formations, animals and can even extend to everyday objects which have significance in a worshipper’s life. As a matter of religion, every manifestation of the Supreme Being is divine and worthy of worship. However, as a matter of law, every manifestation of the Supreme Being is not a legal person. Legal personality is an innovation arising out of legal necessity and the need for adjudicative utility. Each conferment of legal personality absent an express deed of dedication must be judged on the facts of the case and it is not a sound proposition in law to state that every manifestation of the Supreme Being results in the creation of a legal person.
186. In the present case, it was contended that the land forming the disputed site is itself the manifestation of Lord Ram. Significant reliance was placed on the existence of certain temples which do not possess idols, in particular the Chidambaram temple in Tamil Nadu, to advance two legal propositions: First, that a Hindu deity possessing juristic personality could exist even absent an idol, and second that unadorned land, absent any distinguishing features, could constitute a Swayambhu deity and consequently a juristic person. As noted above, the cases relied upon by Mr Parasaran with respect to the Chidambaram and Kalyansundareswar temple do not refer to the conferral of juristic personality. However, it is true than an idol is not a pre-requisite for the existence of a juristic person. Where there exists an express deed of dedication, the legal personality vests in the pious purpose of the founder. The idol is the material embodiment of the pious purpose and is the site of jural relations. There are instances of the submergence or even destruction of the idol inspite of which it has been held that the legal personality continues to subsist. Even if a testator were to make a dedication to a religious purpose but the idol did not exist at the time the dedication was made or the manifestation of the divine was not in the form of the idol, but in the form of some other object of religious significance, the legal personality would continue to vest in the pious purpose of the dedication itself. However, that is not the situation in the present case. In the case of the second plaintiff in Suit 5, there exists no express deed of dedication.
187. It is true that merely because the second plaintiff is not an idol, and there exists no deed of dedication, it is not precluded from being conferred with legal personality. Swayambhu deities, by the very fact that they are manifested from nature, may not fit the description of an idol in the traditional sense. Courts are not barred from recognising such a material manifestation of the divine as a juristic person. The manifestation in a material form is what is the defining feature. In the present case however, the arguments advanced in reply on behalf of the plaintiffs in Suit 5 rest on a two-fold claim: First, that no material manifestation is required for the conferral of juristic personality in the case of a Swayambhu deity. In this view, the performance of worship with the faith and belief that corporeal property represents the divine is adequate for the conferral of juristic personality. Second, in the alternative, assuming that a material manifestation is a pre-requisite for a Swayambhu deity, the land at the disputed site represents the material manifestation and given the performance of religious worship, no further evidence is required for the conferral of juristic personality. Several examples of temples without idols were placed before this court, including that of the Chidambaram Temple to contend that the deity of Ram had manifested itself in the form of land itself. According to the plaintiffs in Suit 5, the birth of Lord Ram at the disputed site is the revelation, and the resident deity of Ram Janmabhumi manifests itself in the form of the land that it is the disputed land. At the Chidambaram Temple, there exists no idol of the resident deity, Lord Siva. A curtain exists at the altar. At the time of worship, the curtain is drawn away and the altar is revealed to have an empty space. The empty space at the altar is the subject of the prayers and devotees regularly leave offerings at the altar. Mr Parasaran sought to draw a parallel to demonstrate how empty space itself, absent any idol or distinguishing features, was the subject of worship and constituted a valid deity upon which juristic personality could be conferred.
188. The arguments urged by Mr Parasaran in his reply raise three questions for our determination: First, whether a Swayambhu deity may be recognised absent a physical manifestation; second, whether land can constitute a manifestation of the deity; and third, whether legal personality can be conferred on immovable property per se.
189. A Swayambhu deity is a manifestation of God that is ‘self-revealed’ or ‘discovered as existing’ as opposed to a traditional idol that is hand-crafted and consecrated by the prana pratishta ceremony. The word ‘swayam’ means ‘self’ or ‘on its own’, ‘bhu’ means ‘to take birth’. A Swayambhu deity is one which has manifested itself in nature without human craftsmanship. Common examples of these deities are where a tree grows in the shape of a Hindu God or Goddess or where a natural formation such as ice or rock takes the form of a recognised Hindu deity.
190. Dr Dhavan contended that any case of Swayambhu deity would necessarily need to be based on: (i) some evidence of the manifestation of God in a material form followed by; (ii) faith and belief that a particular piece of corporeal property represents the divine; and (iii) in the absence of traditional prana parishta ceremonies of consecration, some institutionalised worship constituting recognition by the religion itself that the manifestation was a deity. In this view, a Swayambhu deity is premised on faith and belief coupled with a physical manifestation and religious recognition.
191. A Swayambhu deity is the revelation of God in a material form which is subsequently worshipped by devotees. The recognition of a Swayambhu deity is based on the notion that God is omnipotent and may manifest in some physical form. This manifestation is worshipped as the embodiment of divinity. In all these cases, the very attribution of divinity is premised on the manifestation of the deity in a material form. Undoubtedly, a deity may exist without a physical manifestation, example of this being the worship offered to the Sun and the Wind. But a Swayambhu is premised on the physical manifestation of the Divine to which faith and belief attaches.
192. The difficulty that arises in the present case is that the Swayambhu deity seeking recognition before this Court is not in the form ordinarily associated with the pantheon of anthropomorphised Hindu Gods. The plaintiffs in Suit 5 have sought to locate the disputed land as a focal point by contending that the very land itself is the manifestation of the deity and that the devotees’ worship not only the idols of Lord Ram, but the very land itself. The land does not contain any material manifestation of the resident deity Lord Ram. Absent the faith and belief of the devotees, the land holds no distinguishing features that could be recognised by this court as evidence of a manifestation of God at the disputed site. It is true that in matters of faith and belief, the absence of evidence may not be evidence of absence. However, absent a manifestation, recognising the land as a self-manifested deity would open the floodgates for parties to contend that ordinary land which was witness to some event of religious significance associated with the human incarnation of a deity (e.g. the site of marriage, or the ascent to a heavenly abode) is in fact a Swayambhu deity manifested in the form of land. If the argument urged by Mr Parasaran that there is no requirement of a physical manifestation is accepted, it may well be claimed that any area of religious significance is a Swayambhu deity which deserves to be recognised as a juristic personality. This problem is compounded by the fact that worship to a particular deity at a religious site and to the land underlying a religious site are for all intents and purposes, indistinguishable. Hence, in order to provide a sound jurisprudential basis for the recognition of a Swayambhu deity, manifestation is crucial. Absent that manifestation which distinguishes the land from other property, juristic personality cannot be conferred on the land.
193. It is conceivable that in certain instances the land itself would possess certain unique characteristics. For example, it may be claimed that certain patterns on a sea-shore or crop formations represent a manifestation of the divine. In these cases, the manifestation is inseparable from the land and is tied up to it. An independent question arises as to whether land can constitute the physical manifestation of the deity. Even if a court recognises land as a manifestation of a deity, because such land is also governed by the principles of immoveable property, the court will need to investigate the consequences which arise. In doing so the court must analyse the compatibility of the legal regime of juristic personality with the legal regime on immoveable property. It is necessary now to turn to this.
Property vested in a deity and property as a deity
194. There is a significant distinction between property vested in a foundation (as in Roman law) or a deity as a juristic person (as in Hindu Law) and property per se being a juristic person. Where the property vests in a foundation constituted for a pious purpose, it retains its characteristics as immoveable property. This remains true even in cases where the property vests in the deity in an ideal sense. The purpose of conferring juristic personality is to ensure both a centre of legal relations as well as the protection of the beneficial interest of the devotees. It does not however, alter the character of the property which vests in the juristic person. It remains subject to the framework of the law which defines all relationships governing rights or interests claimed in respect of property and the liabilities which attach to jural transactions arising out of property.
195. This distinction, which highlights the features of immoveable property received articulation by the Privy Council in The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar.121 In that case, a mosque was dedicated in 1722 by one Falak Beg Khan. By the deed of dedication, Sheikh Din Mohammad and his descendants were appointed as Mutawallis. Since 1762, however, the building together with the court-yard, well and adjacent land, was in the occupation and possession of the Sikhs. The land adjacent to the mosque became the site of a Sikh shrine. At the time of the annexation by the British in 1849, the Sikhs were in possession of both the mosque and the adjacent lands.
196. Thereafter, the building was demolished “by or with the connivance of its Sikh custodians”. A suit was instituted in 1935 against Shiromani Gurdawara Parbandhak Committee – who were in possession of the disputed property, seeking a declaration that the building was a mosque in which the plaintiffs and all the followers of Islam had a right to worship along with a mandatory injunction to reconstruct the building. One of the 18 plaintiffs was the mosque itself – the site and the building. The Privy Council assessed the contention that the mosque and the adjoining properties were a juristic person. Rejecting the contention, Justice George Rankin held:
“The argument that the land and buildings of a mosque are not property at all because they are a “juristic person” involves a number of misconceptions. It is wholly inconsistent with many decisions whereby a worshipper or the mutwalli has been permitted to maintain a suit to recover the land and buildings for the purposes of the wakf by ejectment of a trespasser… That there should be any supposed analogy between the position in law of a building dedicated as a place of prayer for Muslims and the individual deities of the Hindu religion is a matter of some surprise to their Lordships… the procedure in India takes account necessarily of the polytheistic and other features of the Hindu religion and recognizes certain doctrines of Hindu law as essential thereto, e.g. that an idol may be the owner of property…
The decisions recognizing a mosque as a “juristic person” appear to be confined to the Punjab : 153 PR 1884; Shankar Das v. Said Ahmad (1884) 153 PR 1884 59 PR 1914; Maula Bux v. Hafizuddin (1926) 13 AIR Lah 372 AIR 1926 Lah 372.6 In none of those cases was a mosque party to the suit, and in none except perhaps the last is the fictitious personality attributed to the mosque as a matter of decision. But so far as they go these cases support the recognition as a fictitious person of a mosque as an institution – apparently hypostatizing an abstraction. This, as the learned Chief Justice in the present case has pointed out, is very different from conferring personality upon a building so as to deprive it of its character as immovable property.”
(Emphasis supplied)
197. The Privy Council noted that if the mosque was a juristic person, this may mean that limitation does not apply to it and that “it is not property but an owner of property.” Underlying the line of reasoning adopted by the Privy Council is that the conferral of legal personality on immovable property could lead to the property losing its character as immoveable property. Immoveable property, by its very nature, admits competing proprietary claims over it. Immoveable property may be divided. However, the recognition of the land itself as a juristic person may potentially lead to the loss of these essential characteristics. Where juristic personality was recognised in corporeal property itself such as the idol, it served the larger purpose for which juristic personality was conferred – to ensure the execution and protection of the pious purpose set out by a donor and the ultimate protection of the beneficial interest of the worshippers. However, to confer legal personality on immoveable property leads to consequences that fundamentally have no nexus to the limited purpose for which juristic personality is conferred. It sets apart immoveable property on which a juristic character is conferred from all other species of immoveable property. This will lead to the claim that the legal regime which applies to the latter (‘ordinary immoveable property’) will not apply to that class of immoveable property which is recognised as a juristic person in and of itself. The principles of adverse possession and limitation would, if the argument were to be accepted, not apply to the land as a legal person which is incapable of being “possessed”. The conferral of legal personality in the context of endowments was to ensure the legal protection of the endowed property, not to confer upon the property legal impregnability by placing it outside the reach of the law. The elevation of land to the status of a juristic person fundamentally alters its characteristics as immoveable property, a severe consequence against which a court must guard. Nor is it a valid safeguard to postulate that the court will decide on a case to case basis where a particular immoveable property should have a juristic status. Absent any objective standard of application the process of drawing lines will be rendered inherently subjective, denuding the efficacy of the judicial process.
198. The land in question has been treated as immoveable property by all the parties to the present dispute, including those from the Hindu community until 1989. The litigation over the disputed property dated back to 1885, and at no point, until Suit 5 in 1989 was a plea taken that the land in question was anything possessed of a juristic personality. Apart from the reasons which have been outlined above, it would not be open for the court to treat the property differently now, solely on the basis of the novel plea urged by the plaintiffs in Suit 5 in 1989.
Addressing title claims in a conventional framework
199. The facts of the present case raise questions of access of the devotees to the site of religious worship and the question of who has title to the land. The former may be protected by the court in several ways without the creation of an artificial legal person. The protection against mismanagement squarely falls within the domain of who should be recognised as a shebait, and this is addressed elsewhere in the course of the present judgement. Generally speaking, the court is empowered to address such situations upon an application under Section 92 of the Code of Civil Procedure 1908. The question of title can be adjudicated upon using the existing legal regime applicable to immoveable property. There is no reason bearing on necessity or convenience that would compel the court to adopt the novel argument set forth by the plaintiffs in Suit 5 that juristic personality must be conferred on the disputed land.
200. The conferral of juristic personality is a legal innovation applied by courts in situations where the existing law of the day has certain shortcomings or such conferral increases the convenience of adjudication. In the present case, the existing law is adequately equipped to protect the interests of the devotees and ensure against maladministration without recognising the land itself as a legal person. Where the law is capable of adequately protecting the interests of the devotees and ensuring the accountable management of religious sites without the conferral of legal personality, it is not necessary to embark on the journey of creating legal fictions that may have unintended consequences in the future. There is therefore no merit in the argument that faith and belief, and the protection of faith and belief alone may necessitate the conferral of legal personality on the second plaintiff. On the contrary, there exists a substantial risk with adopting this argument. It may be contended by a section of a religion that a particular plot of land is the birth-place, place of marriage, or a place where the human incarnation of a deity departed for a heavenly abode; according to the faith and belief of the devotees. Corporeal property may be associated with myriad incidents associated with the human incarnation of a deity each of which holds a significant place in the faith and belief of the worshippers. Where does the court draw the line to assess the significance of the belief as the basis to confer juristic personality on property? In the absence of an objective criterion, the exercise will be fraught with subjectivity. Adopting the argument of the plaintiffs in Suit 5 may result in the conferral of legal personality on all such claims to land. This conferral would be to the detriment of bona fide litigants outside the faith – who may not share the same beliefs and yet find their title extinguished. Further, such conferral of legal personality on immovable property would be on the basis of the faith and belief of the devotees, which is fundamentally subjective and incapable of being questioned by this Court.
201. The purpose for which juristic personality is conferred cannot be ‘evolved’ into a trojan horse that permits, on the basis of religious faith and belief, the extinguishing of all competing proprietary claims over property as well stripping the property itself of the essential characteristic of immoveable property. If the contention urged on the behalf of the plaintiffs in Suit 5 is accepted, it results in a position in law where claims to ‘absolute title’ can be sustained merely on the basis of the faith and belief of the devotees. The conferral of legal personality on corporeal property would immunise property not merely from competing title claims, but also render vast swathes of the law that are essential for courts to meaningfully adjudicate upon civil suits, such as limitation, ownership, possession and division, entirely otiose. At best, the contention urged on behalf of the plaintiffs in Suit 5 would sustain a claim that the specific site is a location of religious significance for the devotees. It cannot however be extended to sustain proprietary claims to the law or to immunise the land from proprietary or title based claims of others by conferring juristic personality on the land itself.
Commitment to constitutional values
202. A final observation must be made on this aspect of the case which is of significant importance. The rejection of the contention urged on behalf of the plaintiffs in Suit 5 touches upon the heart of our constitutional commitment to secularism. The method of worship on the basis of which a proprietary claim may be sustained is relatable to a particular religion. The conferral of legal personality on idols stemming from religious endowments is a legal development applicable only to a practice of the Hindu community. The performance of the parikrama is a method of worship confined largely to Hinduism. Putting aside the fact that the argument raised by the plaintiffs in Suit 5 is a novel extension of the law applicable to Hindu religious endowments, this is a significant matter which requires our consideration.
203. Religious diversity undoubtedly requires the protection of diverse methods of offering worship and performing religious ceremonies. However, that a method of offering worship unique to one religion should result in the conferral of an absolute title to parties from one religion over parties from another religion in an adjudication over civil property claims cannot be sustained under our Constitution. This would render the law, which ought to be the ultimate impartial arbiter, conferring a benefit on a party with respect to her or his legal claims, not on the basis of the merits of a particular case, but on the basis of the structure or fabric of the religion to which they belong. If the contention urged on behalf of the plaintiffs in Suit 5 is accepted, the method of worship performed by one religion alone will be conferred with the power to extinguish all contesting proprietary claims over disputed property.
204. It is true that the connection between a person and what they consider divine is deeply internal. It lies in the realm of a personal sphere in which no other person must intrude. It is for this reason that the Constitution protects the freedom to profess, practice and propagate religion equally to all citizens. Often, the human condition finds solace in worship. But worship may not be confined into a straightjacket formula. It is on the basis of the deep entrenchment of religion into the social fabric of Indian society that the right to religious freedom was not made absolute. An attempt has been made in the jurisprudence of this court to demarcate the religious from the secular. The adjudication of civil claims over private property must remain within the domain of the secular if the commitment to constitutional values is to be upheld. Over four decades ago, the Constitution was amended and a specific reference to its secular fabric was incorporated in the Preamble. At its heart, this reiterated what the Constitution always respected and accepted: the equality of all faiths. Secularism cannot be a writ lost in the sands of time by being oblivious to the exercise of religious freedom by everyone.
205. It is for all the reasons highlighted above that the law has till today yet to accept the conferral of legal personality on immoveable property. Religiosity has moved hearts and minds. The court cannot adopt a position that accords primacy to the faith and belief of a single religion as the basis to confer both judicial insulation as well as primacy over the legal system as a whole. From Shahid Gunj to Ayodhya, in a country like ours where contesting claims over property by religious communities are inevitable, our courts cannot reduce questions of title, which fall firmly within the secular domain and outside the rubric of religion, to a question of which community’s faith is stronger.
On a consideration of all the factors outlined above, it is thus held that the second plaintiff in Suit 5 – ‘Asthan Shri Ram Janam Bhumi’ is not a juristic person.
K. Analysis of the suits
206. Suit 1 filed by Gopal Singh Visharad is essentially a suit by a worshipper for enforcement of his right to worship Lord Ram at the Janmabhumi. Suit 3 filed by Nirmohi Akhara is for handing over the management and charge of the Janmabhumi temple to it. Suit 4 filed by Sunni Central Waqf Board is for a declaration that the entirety of the disputed site, including Babri Masjid and the surrounding graveyard, is a public mosque and for a decree for possession. Suit 5 is filed by the deity of Lord Ram and the Janmasthan (both of whom are asserted to be juridical persons) through a next friend impleaded as a third plaintiff for a declaration that the entire premises comprised of annexures 1, 2 and 3 to the plaint constitute Ram Janmabhumi and for an injunction against interference in the construction of a new temple after the demolition of the existing building.
The judgment now proceeds to analyse and adjudicate upon the claims in the suits.
L. Suit 1: Gopal Singh Visharad since deceased and survived by Rajendra Singh v Zahoor Ahmad and others
L.1 Pleadings
207. On 16 January 1950, a suit was instituted by Gopal Singh Visharad before the Civil Judge at Faizabad, describing himself as a Hindu devotee. He is a resident of Ayodhya and follower of ‘Santan Dharm’. His grievance was that he was being prevented by officials of the government from entering the inner courtyard of the structure to offer worship. The plaintiff claims that he is entitled to worship the deity of Lord Ram. The following reliefs were sought:
(i) A declaration of his entitlement to worship and seek the darshan of Lord Ram, “according to religion and custom” at the Janmabhumi temple without hindrance; and
(ii) A permanent and perpetual injunction restraining defendants 1 to 10 from removing the idols of the deity and other idols from the place where they were installed; from closing the way leading to the idols; or interfering in worship and darshan.
The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when the employees of the government are alleged to have unlawfully prevented the plaintiff “from going inside the place” and exercising his right of worship. It was alleged that the “State” adopted this action at the behest of the Muslim residents represented by defendant nos 1 to 5, as a result of which the Hindus were stated to been deprived of their “legitimate right of worship”. The plaintiff apprehended that the idols, including the idol of Lord Ram, would be removed. These actions were alleged to constitute a “direct attack on the right and title of the plaintiff” and was stated to be an “oppressive act”, contrary to law.
208. Denying the allegations contained in the plaint, the Muslim defendant nos 1 to 5 stated in their written statement that:
(i) The property in respect of which the case has been instituted is not Janmabhumi but a mosque constructed by Babur. The mosque was built in 1528 on the instructions of Babur by Mir Baqi, who was the Commander of his forces, following the conquest of the sub-continent by the Mughal emperor;
(ii) The mosque was dedicated as a waqf for Muslims, who have a right to worship there. Babur laid out annual grants for the maintenance and expenditure of the mosque, which were continued and enhanced by the Nawab of Awadh and the British Government;
(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant Raghubar Das only in respect of the Ramchabutra and hence, the claim that the entire building represented the Janmasthan was baseless. As a consequence of the dismissal of the suit on 24 December 1885, “the case respecting the Chabutra was not entertained”;
(iv) The Chief Commissioner, Waqf appointed under the Muslim Waqf Act 1936 had held the mosque to be a Sunni Waqf;
(v) Muslims have always been in possession of the mosque. This position began in 1528 and continued thereafter, and consequently, “Muslims are in possession of that property… by way of an adverse possession”;
(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which point there were no idols under the central dome. If any person had placed any idol inside the mosque with a mala fide intent, “the degradation of the mosque is evident and the accused persons are liable to be prosecuted”;
(vii) Any attempt of the plaintiff or any other person to enter the mosque to offer worship or for darshan would violate the law. Proceedings under Section 145 of the CrPC 1898 had been initiated; and
(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is without basis as there exists, for quite long, another temple with idols of Lord Ram and others, which is the actual place of the Janmasthan of Lord Ram.
A written statement was filed by defendant no 6, the State, submitting that:
(i) The property in suit known as Babri Masjid has been used as a mosque for the purpose of worship by Muslims for a long period and has not been used as a temple of Lord Ram;
(ii) On the night of 22 December 1949, the idols of Lord Ram were surreptitiously placed inside the mosque imperilling public peace and tranquillity. On 23 December 1949, the City Magistrate passed an order under Section 144 of CrPC 1898 which was followed by an order of the same date passed by the Additional City Magistrate under Section 145 attaching the disputed property. These orders were passed to maintain public peace; and
(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal Board, Faizabad-cum Ayodhya as a receiver of the property.
Similar written statements were filed by defendant no 8, the Additional City Magistrate and defendant no 9, the Superintendent of Police.
Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
(i) The building in dispute is not the Janmasthan of Lord Ram and no idols were ever installed in it;
(ii) The property in suit was a mosque known as the Babri mosque constructed during the regime of Emperor Babur who had laid out annual grants for its maintenance and expenditure and they were continued and enhanced by the Nawab of Awadh and the British Government;
(iii) On the night of 22-23 December 1949, the idols were surreptitiously brought into the mosque;
(iv) The Muslims alone had remained in possession of the mosque from 1528 up to 29 December 1949 when it was attached under Section 145. They had regularly offered prayers up to 23 December 1949 and Friday prayers up to 16 December 1949;
(v) The mosque had the character of a waqf and its ownership vested in God;
(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi of Lord Ram as the claim in the Suit of 1885 instituted by Mahant Raghubar Das (described to be the plaintiff’s predecessor) was confined only to the Ramchabutra measuring seventeen feet by twenty one feet outside the mosque; and
(vii) There already existed a Ram Janmasthan Mandir, a short distance away from Babri Masjid.
In the plaintiff’s replication to the written statement of defendant nos 1 to 5, it was averred that the disputed site had never been used as a mosque since 1934. It was further stated that it was “common knowledge” that Hindus were in continuous possession by virtue of which the claim of the defendants ceased.
L.2 Issues and findings of the High Court
209. 1. Is the property in suit the site of Janam Bhumi of Sri Ram Chandraji?
• Justice S U Khan – No temple was demolished for constructing the mosque. Until the mosque was constructed during the period of Babur, the premises in dispute were not treated as or believed to be the birth-place of Lord Ram.
• Justice Sudhir Agarwal – The place of birth as believed and worshiped by the Hindus is the area covered under the central dome of the disputed structure in the inner courtyard.
• Justice D V Sharma – Decided against the defendants.
2. Are there any idols of Bhagwan Ram Chandra Ji and are his Charan Paduka situated in the site in suit?
• Justice S U Khan – Idols were kept on the pulpit inside the mosque for the first time during the night of 22-23 December 1949.
• Justice Sudhir Agarwal – Idols were placed under the central dome of the disputed structure, within the inner courtyard, during the night of 22-23 December 1949 but before it they existed in the outer courtyard.
• Justice D V Sharma – Decided against the defendants.
3. Has the plaintiff any right to worship the ‘Charan Paduka’ and the idols situated in the place in suit?
• Justice S U Khan – The only thing which can be said is that Ramchabutra came into existence before the visit of Tieffenthaler but after construction of the mosque. Both parties were in joint possession.
• Justice Sudhir Agarwal – The plaintiff has a right to worship subject to reasonable restrictions like safety, maintenance and security.
• Justice D V Sharma – Decided in favour of the defendants.
4. Has the plaintiff the right to have darshan of the place in suit?
• Justice S U Khan – The only thing which can be said is that Ramchabutra came into existence before the visit of Tieffenthaler but after construction of the mosque. Both parties were in joint possession.
• Justice Sudhir Agarwal – The plaintiff has a right to worship subject to reasonable restrictions like safety, maintenance and security.
• Justice D V Sharma – Decided in favour of the defendants.
5(a). Was the property in suit involved in original Suit no 61/280 of 1885 in the court of sub-judge (Faizabad Raghubar Das Mahant v Secretary of State for India and others)?
• Justice S U Khan – Nothing was decided in the Suit of 1885 and res judicata does not apply.
• Justice Sudhir Agarwal – Answered in the negative.
• Justice D V Sharma – Property existed as nazul land.
5(b). Was it decided against the plaintiff?
• Justice Sudhir Agarwal – Suit of 1885 was decided against Mahant Bhaskar Das and no relief was granted to him.
• Justice D V Sharma – Property existed as nazul land.
5(c). Was that suit within the knowledge of Hindus in general and were all Hindus interested in the same?
• Justice Sudhir Agarwal – Answered in the negative. No material on record to justify that the suit was filed by Mahant Raghubar Das in a representative capacity.
• Justice D V Sharma – Decided in favour of the defendants.
5(d). Does the decision in same bar the present suit by principles of res judicata and in any other way?
• Justice Sudhir Agarwal – Answered in the negative.
• Justice D V Sharma – Decided in favour of the defendants.
6. Is the property in suit a mosque constructed by Babur commonly known as Babri Mosque, in 1528 A.D?
• Justice S U Khan – The construction of a mosque took place by or under the orders of Babur. Whether it was actually built by Mir Baqi or someone else is not material. Muslims offered regular prayers until 1934, after which until 22 December 1949 only Friday prayers were offered. This is sufficient for continuous possession and use. No temple was demolished for the construction of the mosque.
• Justice Sudhir Agarwal – Plaintiffs have failed to prove the construction of the structure by Babur in 1528 A. D.
• Justice D V Sharma – Decided against the defendants.
7. Have the Muslims been in possession of the property in suit from 1528 A.D. continuously, openly and to the knowledge of the defendants and Hindus in general? If so, its effect?
• Justice S U Khan – Title follows possession and both parties were in joint possession of the disputed premises.
• Justice Sudhir Agarwal – Decided in favour of the plaintiff.
• Justice D V Sharma – Decided in favour of the defendants.
8. Is the suit barred by proviso to Section 42 of the Specific Relief Act?
• Justice S U Khan – Not barred.
• Justice Sudhir Agarwal – Not barred.
• Justice D V Sharma – Decided in favour of the defendants.
9. Is the suit barred by the provisions of Section 5(3) of the Muslim Waqf Act (U.P. Act 13 of 1936)?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Decided in favour of the plaintiff.
• Justice D V Sharma – Decided in favour of the defendants.
9(a). Has the said Act no application to the right of Hindus in general and plaintiff of the present suit, in particular to his right of worship?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – In favour of the Hindu parties in general.
• Justice D V Sharma – Decided in favour of the defendants.
9(b). Were the proceedings under the said Act, referred to in para 15 of the written statement, collusive? If so its effect?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Decided against the plaintiff.
• Justice D V Sharma – Decided in favour of the defendant.
9(c). Are the said provisions of the U.P. Act 13 of 1936 ultra vires for reasons given in the statement of plaintiff’s counsel dated 9.3.62 recorded on paper no. 454-A?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the negative.
10. Is the present suit barred by time?
• Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma – The suit is not barred by limitation.
11(a).Are the provisions of section 91 C.P.C. applicable to the present suit? If so, is the suit bad for want of consent in writing by the Advocate General?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal
• Justice Sudhir Agarwal – Answered in the negative.
• Justice D V Sharma – Decided in favour of the plaintiff.
11(b). Are the rights set up by the plaintiff in this suit independent of the provisions of section 91 CPC? If not, its effect.
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the affirmative.
• Justice D V Sharma – Decided in favour of the plaintiff.
12. Is the suit bad for want of steps and notice under Order 1, Rule 8 CPC? If so, its effect?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal and Justice D V Sharma – Answered in favour of the plaintiff.
13. Is the Suit 2 of 50 (Shri Gopal Singh Visharad v Zahoor Ahmad) bad for want of notice under Section 80 CPC?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Not rejected as barred.
• Justice D V Sharma – Decided in favour of the defendants.
14. Is the Suit no 25 of 50 Param Hans Ram Chandra v Zahoor Ahmad bad for want of valid notice under Section 80 CPC?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal and Justice D V Sharam – Issue redundant after dismissal of the suit as withdrawn.
15. Is the suit bad for non-joinder of the defendants?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal and Justice D V Sharma – Answered in the negative and in favour of the plaintiff.
16. Are the defendants or any of them entitled to special costs under Section 35-A CPC?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Counsel did not press the issue.
• Justice D V Sharma – Plaintiff is not entitled for relief and suit dismissed with easy costs.
17. To what reliefs, if any, is the plaintiff entitled?
• Justice S U Khan – Agrees with the findings of Justice Sudhir Agarwal
• Justice Sudhir Agarwal – The plaintiff’s right of worship cannot be doubted since the site in dispute includes part of the land which is believed to be the place of birth of Lord Ram. To this extent the plaintiff is entitled for a declaration subject to restrictions which may be necessary on account of security, safety and maintenance of the place of worship.
• Justice D V Sharma – Plaintiff is not entitled for relief and suit is dismissed with easy costs.
L.3 Analysis
210. Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the Plaintiff in Suit 1 adverted to the order of the Magistrate dated 29 December 1949, under Section 145 CrPC by which the disputed premises were attached and a receiver was appointed. Learned Counsel stated that fourteen affidavits were filed by certain Muslims under Order XIX, Rule 1 of the CPC between 8-16 February 1950, stating that:
(i) The place where the Babri Masjid was situated is the birth-place of Lord Ram. The Babri Masjid was built by ‘breaking’ the birth-place of Lord Ram;
(ii) After British Rule, Muslims were only reading Friday namaz in the mosque;
(iii) After the construction of the Masjid, Hindus did not give up their possession and continued to worship there;
(iv) Both Hindus and Muslims continued to worship at the disputed site;
(v) Post the riots of 1934, Muslims had stopped going to the Masjid out of fear and ever since, the Hindus had taken possession of the main place in the mosque; and
(vi) There was no objection if the possession of the mosque was to be handed over to the Hindus as reading namaz at that place was against the Shariat.
211. Justice Sudhir Agarwal did not pay any credence to the affidavits and held that:
“3020… The aforesaid documents to the extent to prove the fact that the same were filed before the Magistrate and constitute part of the record of 145 Cr.P.C. proceeding before the City Magistrate is not disputed but to believe the contents thereof, in our view, it was necessary to produce the authors of the documents and to give an opportunity of cross- examination to the other parties against whose interest the documents contain certain averments. None of the author of the said documents have been produced and they are also not party to the proceedings individually. We have no benefit of testifying the correctness of the contents of the said documents. In the absence of any one available to prove the contents of the said documents, in our view, the same cannot be relied and therefore, nothing turns out from the aforesaid documents either in favour or against any of the parties.”
Justice S U Khan agreed with the observations made by Justice Sudhir Agarwal. However, Justice D V Sharma has held the affidavits to be admissible and observed that:
“…affidavits of the persons under or through whom the plaintiffs are claiming were sworn before an official empowered by the Magistrate are admissible evidence…”
212. Mr Ranjit Kumar, has made the following submissions:
(i) The Suit of 1885 will have no impact on the present suit as in the earlier suit the relief sought was for the permission to establish a temple over a platform which was confined to the Chabutra outside the mosque. However, the present suit is with respect to the right to worship and seek the darshan of Lord Ram, “according to religion and custom” at the Janmabhumi temple;
(ii) On 3 March 1951, the Trial Court confirmed the ad-interim order dated 19 January 1950 passed in Suit 1 by which the injunction was modified to prevent the idols from being removed from the disputed site and from causing interference in the performance of puja. The trial judge referred to the affidavits of certain Muslim residents of Ayodhya and stated that at least from 1936 “the Muslims have neither used this site as a mosque nor offered prayers there” and “the affidavits referred do make out a prima facie case in favour of the plaintiff”. The above order was confirmed by a Division Bench of the High Court of Allahabad in appeal on 26 April 1955, though the High Court made an observation that taking on record the affidavits after the judgment had been reserved, was not correct;
(iii) Despite the publication of public notices in three newspapers calling objections with respect to the Section 145 proceedings, none of the Muslim defendants filed any contrary statements;
(iv) These affidavits have corroborative value: when defendant nos 1 to 5 filed their written statements in Suit 1 on 21 February 1950, despite having knowledge of the affidavits filed in the Section 145 proceedings, they did not object to the stand taken by Muslims;
(v) Before the High Court, the affidavits had been brought on record in the present suit and were duly exhibited. They form part of relevant historical facts and could not be rejected outright;
(vi) Defendant nos 1 to 5 filed an application praying that Suit 1 be treated as a representative suit under Order I Rule 8, which was opposed by the plaintiff. The Civil Judge by an order dated 27 October dismissed the application;
(vii) During the course of arguments before this Court, in the exhibits relied upon by the Sunni Central Waqf Board to show possession from 1858 the disputed site has been referred to as “Janam Asthan Masjid” or “Masjid Janam Asthan” signifying that the site was always referred to as the Janmasthan or birth-place of Lord Ram;
(viii) The right of entry into the temple for purposes of “darshan” or worship is a right which flows from the nature of the institution itself (Nar Hari Shastri v Shri Badrinath Temple Committee122). Worship includes attendance at the temple for the purpose of darshan of a deity or deities in the precincts (Sastri Yagnapurushadji v Muldas Bhudardas Vaishya123). If the general public have always made use of the temple for public worship and devotion in the same way as they do in other temples, it is a strong circumstance in favour of the conclusive existence of a public temple (Bala Shankar Maha Shanker Bhattjee v Charity Commissioner, Gujarat State124).
Mr Ranjit Kumar, learned Senior Counsel referred to the order of the Magistrate dated 30 July 1953, by which the file in the proceedings under Section 145 was consigned to the record in view of the temporary injunction granted on 3 March 1951. The Magistrate noted that the case under Section 145 had been pending
‘unnecessarily’ and dates were being fixed in the hope that the civil suit will be disposed of or the temporary injunction will be vacated. However, the Magistrate noted that the finding of the civil court was binding on the criminal court and there was no purpose in starting the proceedings separately under Section 145. Mr Ranjit Kumar drew this Court’s attention to the application dated 22 July 1954 filed by Gopal Singh Visharad before the Magistrate requesting him to preserve all files with respect to the proceedings under Section 145 and not to weed them out till the finality of the decision of the civil court.
213. Dr Rajeev Dhavan, learned Senior Counsel appearing for the Sunni Central Waqf Board, has raised the following submissions in reply:
(i) The written statements filed by defendant nos 1 to 5 do not include the Sunni Central Waqf Board;
(ii) The mosque was constructed by Babur through his Commander Mir Baqi and was dedicated as a valid waqf. Under the Muslims Waqf Act 1936, the Chief Commissioner Waqf decided that the mosque was a Sunni Waqf;
(iii) The Muslims have been in possession of the mosque since 1528 and by virtue of being in possession for more than 400 years, affirmed their right of adverse possession over the disputed property;
(iv) Suit 1 has been primarily filed against the State authorities as the main grievance was against the authorities preventing the plaintiff from offering worship inside the disputed premises;
(v) The suit was filed to enforce a personal right of the plaintiff i.e. the right to worship inside the disputed structure and thus, the right gets automatically extinguished on his death;
(vi) The fourteen affidavits filed by the Muslim persons of Ayodhya in the proceedings under Section 145 proceedings are not admissible in evidence under Section 3 of the Indian Evidence Act. The affidavits have no relevance as the authors of the affidavits have not been cross examined and since they are not parties to any of the suits individually, they cannot be relied upon. Justice Sudhir Agarwal has found these affidavits to be unreliable;
(vii) There is no clear mention of whether the plaintiff had earlier carried out any worship inside the disputed structure and he has not mentioned the exact place of birth of Lord Ram below the central dome; and
(viii) The exhibits relied upon by the Sunni Central Waqf Board clearly show that the Hindu parties had access to only the outer courtyard restricted to the Ramchabutra and Sita Rasoi. All efforts of trespass in the inner courtyard were thwarted and the authorities passed directions evicting those who tried to enter the inner courtyard.
214. None of the persons who are alleged to have filed affidavits in the proceedings under Section 145 were examined in evidence during the course of the civil trial before the High Court. The credibility of a statement made by a person on affidavit can only be accepted if the witness is produced in evidence. However, in the present case, the Muslim residents who presented the affidavits before the Magistrate in the proceedings under Section 145 were not cited or produced as witnesses. In the absence of any opportunity to the opposite side to challenge the statements made in the affidavits, no reliance can be placed upon the contents of the affidavits.
215. The original plaintiff Gopal Singh Visharad passed away during the pendency of the suit and was substituted by his son, Rajendra Singh Visharad pursuant to the court’s order dated 22 February 1986. It was contended that the original plaintiff instituted the suit for enforcing his private right to worship at the disputed property and that upon his death, such right was extinguished, and the suit stood abated. It is necessary to advert to the pleadings in Suit 1 to determine whether the right asserted by the original plaintiff was a private right or involved a larger public right claimed in common with other worshippers. Paragraph 3 of the plaint in Suit 1 reads as follows:
“…Defendant No.6 prevented the plaintiff from going inside the place where the idol of Shri Ramchandra Ji and others are placed and it was learnt that after getting influence with the baseless and false perversity of the Defendants No.1 to 5 and their other fellows, Defendant No.7 to 9 have deprived the Hindu public from their legitimate right of performing worship and having darshan and because of undue insistence of the Defendants No.1 to 5 etc., Defendant No. 6 declares that Hindu Public shall be deprived from their above rights in the same manner in future also and because of the above unjustifiable act, proprietary right of original plaintiff which he had always used, is being infringed and in the above circumstances, present plaintiff has the complete apprehension and fear of improper and unlawful interference in the Defendants in exercise of the above religious rights.”
(Emphasis supplied)
Defendant no 6 is the State of Uttar Pradesh defendants nos 7 to 9 are the Deputy Commissioner, Additional City Magistrate and the Superintendent of Police, Faizabad respectively. The pleadings indicate that the right asserted was not a private right, but a right in common with and for the benefit of other Hindu devotees to pray at the disputed property. The right claimed was that of the
“Hindu public” to worship at the disputed property without undue interference. By an order dated 22 February 1986, the court permitted Rajendra Singh Visharad, the son of the original plaintiff, to be substituted as the first plaintiff in Suit 1. Rajendra Singh Visharad is also a follower of the ‘Sanatan Dharm’ and performed worship at the disputed site. The right asserted on behalf of the larger “Hindu public” does not stand extinguished upon the death of the original plaintiff and can be pursued by his son who is also a worshipper.
216. The remaining issues in contention in Suit 1 are connected with the ones argued in Suit 5. The relief sought in Suit 5 will have a direct impact on the plaintiff’s right to pray as claimed in Suit 1. Accordingly, we will deal with the contentions raised in Suit 1 at the time of addressing the contentions in Suit 5.
M. Suit 3: Nirmohi Akhara
M.1 Pleadings
217. Nirmohi Akhara claims that the Janmasthan, commonly known as Janmabhumi, which is the birth-place of Lord Ram “belongs and has always belonged” to it and it has been “managing it and receiving offerings through the reigning Mahant and Sarbrahkar”. Besides the receiver, the second to fifth defendants are official respondents represented by the State of Uttar Pradesh and its officers. The plaint contains an averment that the temple has “ever since been in the possession of” Nirmohi Akhara and only Hindus have been allowed to enter and worship in it, at least since 1934. In other words, Nirmohi Akhara denies the status of the disputed structure as a mosque. The basis for the institution of the suit is the initiation of the proceedings under Section 145 of the CrPC 1898 by the City Magistrate. The proceedings are alleged to be without lawful cause and under the “wrong persuasion” of the Muslim parties represented by the sixth and eighth defendants. As a result, the Nirmohis allege that they were wrongfully deprived “of their management and charge of the said temple” and that though they were awaiting the conclusion of the proceedings under Section 145, the proceedings have been unduly prolonged with the connivance of the defendants.
The Muslim parties have been impleaded because they are alleged to be interested in ensuring that the charge and management of the temple is not handed over to Nirmohi Akhara. The cause of action for the suit is stated to have arisen on 5 January 1950 when the receiver is alleged to have illegally taken over management and charge of the temple from Nirmohi Akhara. Following the incident which took place on 6 December 1992 (which the Nirmohis claim as the demolition of the property of the temple by “some miscreants”), the plaint was amended. The amended plaint refers to the trust deed executed by Nirmohi Akhara on 19 March 1949 reducing its existence into writing. The Akhara claims to own several temples and properties, which vest in it. The relief that is claimed in the suit is for the removal of the receiver “from the management and charge of the said temple of Janmabhoomi” and for delivering it to the plaintiff.
The averments contained in the plaint as well as the reliefs which have been claimed by Nirmohi Akhara indicate that the claim is founded on an entitlement, which is asserted to be the charge and management of the temple. In that capacity, the Nirmohis state that they have been in possession of the Janmabhumi temple and have received offerings made by devotees. The plaint contains a reference to the temples that are owned and managed by Nirmohi Akhara. There is a reference to the possession of the Janmasthan temple by the Akhara. Ultimately, the claim for relief is a direction simpliciter to the receiver to handover the management and charge of the temple to it.
218. In the written statement, which was filed by the Muslim parties (defendant nos 6 to 8), the plea taken was that in the Suit of 1885 which was instituted by Mahant Raghubar Das, the relief was confined to the Chabutra outside the mosque and no objection was taken in respect of the mosque which was depicted in the site plan.
In its replication, Nirmohi Akhara expressed ignorance about the suit filed by Mahant Raghubar Das. The Akhara claims that it has been wrongfully deprived of charge and the right to manage the temple as a result of the proceedings. Though in the plaint it appears that the claim in the suit was in respect of the inner courtyard, in the replication filed by Nirmohi Akhara to the written statement of the tenth defendant, it has been stated that the outer enclosure was in its possession and was owned and managed by it until 1982 when it came into possession of the receiver in a suit inter se being Regular Suit 39 of 1982.
219. The averments contained in the pleadings of Nirmohi Akhara in Suit 3 must be read together with the nature of their defence to Suit 5. Suit 5 has been instituted on behalf of the deity of Lord Ram and the Janmasthan by a next friend.
Nirmohi Akhara in its written statement in Suit 5 opposes the maintainability of the Suit on the ground that the Janmasthan is not a juridical person and the next friend had no right or authority to institute a suit on behalf of the deity and the Janmasthan. Nirmohi Akhara has distanced itself from Suit 5, claiming that the idol of Lord Ram is not known as “Ram Lala Virajaman” and that the Janmasthan is simply a place and not a juridical person.
Nirmohi Akhara has claimed in its written submissions that it is the “Shebait of Bhagwan Shri Ram installed in the temple in dispute” and that the Akhara “alone” has the right to control, supervise and repair or even to reconstruct the temple, if necessary. It claims that in its capacity as the shebait and manager, “the temple belongs to Nirmohi Akhara” and the plaintiffs in Suit 5 “have no real title to sue”. It has been urged that Suit 5 encroaches upon the rights of Nirmohi Akhara to manage the temple. Nirmohi Akhara urges that the entire premises belong to it and the plaintiffs in Suit 5 have no right of declaration against the right and title of Nirmohi Akhara. In the additional written statement, it has been claimed that the outer part was in the management and charge of Nirmohi Akhara till it was attached when the receiver was appointed in Regular Suit 239 of 1982.
M.2 Conflict between Suit 3 and Suit 5
220. The following position emerges from an analysis of the pleadings of Nirmohi Akhara in Suit 3 and as a defendant in Suit 5:
(i) The claim of Nirmohi Akhara is for the management and charge of Ram Janmabhumi temple;
(ii) The relief sought is for handing over of the management and charge of the temple by the receiver to it;
(iii) In the context of (i) and (ii) above, Nirmohi Akhara has claimed that it was in possession of the temple;
(iv) The deprivation of the right claimed arose when the receiver took over management and charge on 5 January 1950;
(v) The claim of Nirmohi Akhara is in the capacity of a shebait and as a manager of the temple;
(vi) Nirmohi Akhara opposes the maintainability of Suit 5 on the ground that as a shebait, it alone is entitled to represent the deity of Lord Ram;
(vii) The entitlement of Nirmohi Akhara to sue is to the exclusion of any third party and hence, Suit 5 which has been instituted through a next friend, is asserted as not being maintainable; and
(viii) The status of Ram Janmasthan as a juristic entity is denied and hence it would (according to Nirmohi Akhara) not be entitled to pursue the claim in Suit 5.
Both on the basis of the pleadings and the submissions which have been urged during the course of the hearing, a clear conflict of claims and entitlements has emerged between the plaintiffs in Suit 3 and Suit 5.
221. Mr K Parasaran, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5 has submitted that Suit 3 is barred by limitation, a submission which has also been urged on behalf of the plaintiff in Suit 4 by Dr Dhavan. On the other hand, it must be noted that Dr Dhavan submitted that Nirmohi Akhara is as a matter of fact and evidence entitled to claim shebaiti rights in respect of the idols of Lord Ram at the Janmabhumi. He however maintains that Suit 3 is barred by limitation and hence, no relief should or could have been granted in their suit. Hence, from the arguments before this Court it has emerged that:
(i) The plaintiffs in Suit 4 and Suit 5 have challenged Suit 3 on the ground of the bar of limitation;
(ii) The plaintiffs in Suit 5 oppose the claim of the plaintiff in Suit 3 to be the shebait of the idols of Lord Ram; and
(iii) The plaintiff in Suit 4 accepts the entitlement of the plaintiff in Suit 3 as a shebait, subject to the caveat that the suit itself is barred by limitation.
222. A query was addressed by this Court to Mr S K Jain, learned Senior Counsel appearing for the plaintiff in Suit 3 as to whether it is open to a shebait to assert title or ownership in a manner hostile to the claim of the deity. In response, Mr Jain submitted that the claim of Nirmohi Akhara is for management and charge of the temple in its character as a shebait and no more. Hence, though it has used the phrases ‘own’ and ‘belong’, they are not intended to assert a claim of full ownership, over and above or any higher than as a shebait. This aspect of Mr Jain’s submission will be examined shortly in the context of the issue of limitation. However, it must be also noted at this stage that, during the course of the hearing, Mr Jain tendered a statement on the stand of Nirmohi Akhara on the maintainability of Suit 5 in the following terms:
“1. The Nirmohi Akhara would not press the issue of maintainability of Suit No. OOS No. 5 of 1989 which has been filed on behalf of the deities Plaintiff No. 1 and 2 through Plaintiff No. 3 as their next friend under Order 32 Rule 1 CPC provided the other Hindu Parties i.e. Plaintiff of OOS No. 1 of 1989 and Plaintiff No. 3 of OOS No. 5 of 1989 do not press or question the Shebaiti right of Nirmohi Akhara in relation to the deities in question and the maintainability of Suit OOS No. 3 of 1989 by the Plaintiff Nirmohi Akhara.
2. It is submitted that the plaintiff – Nirmohi Akhara can independently maintain the suit even in the absence of deities as parties in Suit OOS No. 3 of 1989 as the identity of the deities is merged in the identity of the Shebait – Nirmohi Akhara. A suit filed by the Nirmohi Akhara “as a Shebait” is a suit filed by and on behalf of the deities.
3. It is stated that, the reliefs sought by the Nirmohi Akhara “For restoration of charge and management from the receiver” cannot be categorized as reliefs “against” the interest of the deities for which it can be said that they should be represented as a defendant through a disinterested next friend.”
In other words, the stand of Nirmohi Akhara is that it alone is entitled to represent the interest of the deity in its character as a shebait which it has done in Suit 3. Moreover, absent any allegation of mismanagement on the part of the shebait, a suit cannot be instituted in the name of the deity by a next friend, as has been done in Suit 5. This aspect will be explored in greater detail when the maintainability of Suit 5 is analysed. At this stage, we must also notice the implications of Dr Dhavan having accepted the shebaiti claim of Nirmohi Akhara. The concession cannot exist in a vacuum. The assertion of the claim can only take place in a context which acknowledges the existence of a deity whom the shebait seeks to represent. Hence, a specific query was posed to Dr Dhavan as to whether, quite independent of the issue of limitation, the concession which has been made on his behalf would necessarily result in a legal consequence in regard to the position of the deity’s presence at Ram Janmasthan. To this, it must be noted that the response of Dr Dhavan was that the presence of the deity at Ramchabutra, in his submission, envisaged only an easementary right to worship for the Hindu devotees to pray and, for that purpose, to gain access to the courtyard.
M.3 Issues and findings of the High Court
223. Before proceeding with our analysis any further, it is necessary at this stage to enumerate the issues which were framed in Suit 3 and the findings of the High Court.
1 Is there a temple of Janmabhumi with idols installed therein as alleged in para 3 of the plaint in Suit 3?
• Justice S U Khan – The idols were held to have been placed in the pulpit inside the constructed portion of the mosque for the first time during the night of 22/23 December 1949.
• Justice Sudhir Agarwal – The premises in dispute cannot be treated to be a temple in the manner as claimed by the plaintiffs in Suit 3. Hence, issue 1 was answered in the negative.
• Justice D V Sharma – There is no evidence to establish that there was any temple belonging to Nirmohi Akhara inside the structure in which idols have been installed from time immemorial.
2 Does the property in Suit belong to the plaintiff in Suit 3?
• Justice Sudhir Agarwal – The property which forms the subject matter of the claim in Suit 3 consists of the premises in the inner courtyard. There is no documentary evidence to establish title nor is there any evidence to establish adverse possession.
• Justice D V Sharma held against the plaintiff.
3 Have plaintiffs acquired title by adverse possession for over 12 years?
• Justice S U Khan – For the period before 1855, there is no need to decide the question of adverse possession.
• Justice Sudhir Agarwal held against the plaintiff.
• Justice D V Sharma held against the plaintiff.
4 Are plaintiffs entitled to get management and charge of the said temple?
• Justice Sudhir Agarwal held against the plaintiff. The idols were placed under the central dome on the night intervening 22/23 December 1949. The plaintiff having disputed this cannot be treated as shebaits of the idols placed under the central dome since there is no evidence of their taking care of the deity in the inner courtyard under the central dome.
• Justice D V Sharma held against the plaintiff.
5 Is the property in suit a mosque made by Emperor Babur known as Babri Masjid?
• Justice S U Khan – The constructed portion of the disputed premises was put up as a mosque by or under the orders of Babur. It was not material if it was built by Mir Baqi or someone else. However, it is not proved by direct evidence that the premises in dispute including the constructed portion belonged to Babur or to the person who constructed the mosque. On the basis of the inscriptions alone it cannot be held that the building was constructed by or under the orders of Babur or that it was constructed in 1528.
• Justice Sudhir Agarwal – The defendants failed to prove that the property in dispute was constructed by Babur in 1528.
• Justice D V Sharma – The property in dispute has been constructed by Babur.
6 Was the alleged mosque dedicated by Emperor Babur for worship by Muslims in general and made a public waqf property?
• Justice S U Khan – It cannot be held that the mosque was not a valid mosque, having been constructed over the land of someone else.
• Justice Sudhir Agarwal – In the absence of evidence direct, circumstantial or otherwise issue no 6 has not been proved and is answered in the negative.
• Justice D V Sharma – Decided together with issue no 1.
7(a) Has there been a notification under Muslim Waqf Act (Act no 13 of 1936) declaring this property in suit as a Sunni Waqf?
• Justice Sudhir Agarwal – Answered in the negative.
• Justice D V Sharma – As per the conclusions drawn in Suit 4.
7(b) Is the said notification final and binding? Its effect.
• Justice Sudhir Agarwal – Answered In the negative.
• Justice D V Sharma – As per the conclusions drawn in Suit 4.
8 Have the rights of the plaintiffs been extinguished for want of possession for over 12 years prior to the suit?
• Justice S U Khan – Parties are enjoying joint possession and hence, it was not necessary to decide the issue of adverse possession.
• Justice Sudhir Agarwal – The suit was instituted in 1959 and it cannot be said that in the preceding 12 years, the plaintiffs never had possession of the inner courtyard. Neither of the plaintiffs have discharged the burden of establishing that they were owners of the property in dispute nor have the defendants established that the plaintiffs remain dispossessed for over 12 years and that the defendants have fulfilled the requirements of adverse possession. The issue is accordingly answered in the negative.
• Justice D V Sharma – Answered against the plaintiff and as per the conclusions drawn in Suit 4.
9 Is the suit within time?
• Justice S U Khan – The suit was within limitation.
• Justice Sudhir Agarwal – The suit is barred by limitation under Article 120 of the Limitation Act. Articles 47, 142 and 144 of the Limitation Act were inapplicable.
• Justice D V Sharma – The suit is barred by limitation.
10(a) Is the suit bad for want of notice u/s 80C?
• Justice Sudhir Agarwal – answered in favour of the plaintiffs.
• Justice D V Sharma – answered in favour of the plaintiffs.
10(b) Is the above plea available to contesting defendants?
• Justice Sudhir Agarwal – answered in favour of the plaintiffs.
• Justice D V Sharma – answered in favour of the plaintiffs.
11 Is the suit bad for non-joinder of necessary defendants?
• Justice S U Khan – though the issue has not been dealt with specifically, he has agreed with the findings of Justice Sudhir Agarwal which are not inconsistent with his own findings.
• Justice Sudhir Agarwal – answered in favour of plaintiffs as not pressed.
• Justice D V Sharma – decided in terms of the findings on issue 21 in Suit 4.
12 Are defendants entitled to special costs u/s 35 CPC?
• Justice Sudhir Agarwal – answered in favour of the plaintiffs as not pressed.
• Justice D V Sharma – answered in the negative.
13 To what relief, if any, is the plaintiff entitled?
• Justice S U Khan – Each of the three parties (Muslims, Hindus and Nirmohi Akhara) is entitled to a declaration of joint title and possession to the extent of one-third share each and a preliminary decree is passed to that effect.
• Justice Sudhir Agarwal – The plaintiff in Suit 3 is not entitled to any relief. Despite this, it has been held that possession of the area governed by Ramchabutra, Sita Rasoi and Bhandar in the outer courtyard is declared to be the share of Nirmohi Akhara in the absence of any claim for better title. Moreover, the open area in the outer courtyard shall be shared by Nirmohi Akhara with the plaintiffs in Suit 5.
• Justice D V Sharma – the suit is dismissed and Nirmohi Akhara is not entitled to any relief.
14 Is the suit not maintainable as framed?
• Justice S U Khan – Issue not decided specifically. Miscellaneous findings – he has agreed with Justice Sudhir Agarwal, subject to anything contrary in his (Justice S U Khan’s) judgment.
• Justice Sudhir Agarwal – suit held not maintainable. Upon the attachment of the property under Section 145 of the CrPC 1898, the plaintiffs could have filed an objection before the Magistrate. The plaintiff did not file any objections or seek any declaration of title, in the absence of which the civil judge could not have directed the handing over of charge by the receiver to the plaintiff.
• Justice D V Sharma – The issue is decided in favour of the plaintiffs.
15 Is the suit property valued and court-fee paid sufficient?
• Justice Sudhir Agarwal – answered in favour of the plaintiffs as not pressed.
16 Is the suit bad for want of notice u/s 83 of U.P. Act 13 of 1936?
• Justice Sudhir Agarwal – – answered in the negative.
17 Whether Nirmohi Akhara, the Plaintiff, is a Panchayati Math of Ramanand sect of Bairagis and as such, is a religious denomination following its religious faith and per suit according to its own customs? (added by Hon’ble High Court’s order dated 23 February 1996)
• Justice Sudhir Agarwal – answered in favour of the plaintiffs.
• Justice D V Sharma – answered held in favour of the plaintiffs.
M.4 Limitation in Suit 3
224. Suit 3 was instituted on 17 December 1959. The Limitation Act of 1908 was in force on the date of the institution of the Suit. Section 3 of the Limitation Act provides that subject to the provisions contained in Sections 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made, after the period of limitation prescribed by the first schedule shall be dismissed, although limitation has not been set up as a defence. Section 31(b)125 of the Limitation Act 1963 saves suits, appeals and applications which were pending on the date of its commencement from the application of the legislation. As a result, the issue of limitation for the purpose of Suit 3 is governed by the Limitation Act 1908.
By a split 2:1 verdict, the High Court held that Suit 3 was barred by limitation, the dissenting judge on this issue being Justice S U Khan.
225. Three articles of the schedule to the Limitation Act 1908 have been pressed in aid and the issue is which of those articles would stand attracted. The relevant articles are Articles 47, 120 and 142. These articles are extracted in the table below:
| Description of suit | Period of limitation | Time from which period begins to run |
| 47. By any person bound by an order respecting the possession of immoveable property made under the Code of Criminal Procedure, 1898, or the Mamlatdars Courts Act, 1906, or by any one claiming under such person, to recover the property comprised in such order. | [Three years] | The date of the final order in the case. |
| 120. Suit for which no period of limitation is provided elsewhere in this schedule. | [Six years] | When the right to sue accrues. |
| 142. For possession of immoveable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. | [Twelve years] | The date of the dispossession or discontinuance. |
Relevant dates
226. Before we enter upon the issue of limitation, it is necessary to recapitulate the relevant dates bearing on the issue. They are as follows:
(i) On 29 December 1949, a preliminary order was passed under Section 145 of the CrPC 1898 by the Additional City Magistrate and while ordering attachment, a receiver was appointed;
(ii) On 5 January 1950, the receiver took charge and made an inventory of the attached properties;
(iii) On 16 January 1950, Suit 1 was instituted by Gopal Singh Visharad seeking a declaration that he was entitled to worship and offer prayers at the main Janmabhumi near the idols. On the same date, an ad interim injunction was granted in the Suit;
(iv) On 19 January 1950, the ad interim injunction in Suit 1 was modified in the following terms:
“The opposite parties are hereby restrained by means of temporary injunction to refrain from removing the idols in question from the site in dispute and from interfering with puja etc. as at present carried on. The order dated 16.01.1950 stands modified accordingly.”
(v) On 3 March 1951, the order of temporary injunction dated 16 January 1950 as modified on 19 January 1950 was confirmed;
(vi) On 30 July 1953, the Additional City Magistrate passed the following order in the proceedings under Section 145:
“The finding of the Civil Court will be binding on the Criminal Court. It is no use starting proceedings in this case under Section 145 Cr.P.C. and recording evidence specially when a temporary injunction stands, as it cannot be said that what may be the finding of this Court after recording the evidence of parties. From the administrative point of view the property is already under attachment and no breach of peace can occur.
I, therefore, order that the file under Section 145 Cr.P.C. be consigned to records as it is and will be taken out for proceedings further when the temporary injunction is vacated.”
(vii) On 31 July 1954, the Additional City Magistrate issued the following directions:
“This file cannot be weeded as it is not a disposed of file.
How do you report that it will be weeded of?”
(viii) On 26 April 1955, an appeal against the order dated 3 March 1951 under Order XLIII, Rule 1(r) of the Code of Civil Procedure 1908 was dismissed by the High Court; and
(ix) On 17 December 1959, Suit 3 was instituted by Nirmohi Akhara for a decree against the receiver for handing over charge and management of the temple.
Reasons of the High Court
227. Justice S U Khan adduced the following reasons for holding that the suit was not barred by limitation:
(i) First, the last order which was passed in the proceedings under Section 145 was on 30 July 1953 (except for an order in 1970 for replacing the receiver on the death of the incumbent). This order and the subsequent order of the Magistrate dated 31 July 1954 indicated that the proceedings under Section 145 had not been dropped or finalised. In the event that the Magistrate had passed some final order either after the dismissal of the appeal against the order granting an interim injunction or on some other date, it would have provided a fresh starting point for the purpose of limitation to file a suit for a declaration;
(ii) Even if it were to be held that Suit 3 is barred by limitation, the rights and entitlement of the contesting parties would have to be decided in Suit 1 which was instituted within the period of limitation. A decision on the title of Nirmohi Akhara in Suit 1 would be sufficient for the purpose of Section 146(1) of the CrPC;
(iii) The demolition of the constructed portion of the premises on 6 December 1992, acquisition of the premises and the adjoining area by the Union Government and the decision of the Supreme Court in Dr M Ismail Faruqui v Union of India126, gave a fresh starting point for limitation. Even if the remedy of all parties (except the plaintiff in Suit 1) was barred by limitation, its rights still subsisted. The demolition of the structure gave a fresh cause of action for a declaratory suit under Section 42 of the Specific Relief Act 1877;
(iv) The receiver appointed under Section 145 of the Magistrate cannot hold the property indefinitely after attachment. Hence, a liberal view would have to be taken in the absence of which uncertainty would be created. Where due to the attachment, a suit for possession could not be filed, Section 28 would not extinguish the rights of the parties. Moreover, the principle of a continuing wrong under Section 23 of the Limitation Act 1908 was applicable and Nirmohi Akhara was being constantly denied their right to charge and management; and
(v) In any event, even if the suit was barred by limitation, the court was bound to pronounce on all issues as required by Order XIV Rule 2(1) of the Code of Civil Procedure 1908.
Justice Sudhir Agarwal adduced the following reasons for holding that Suit 3 was barred by limitation:
(i) The cause of action for the Suit arose on 5 January 1950 upon the receiver taking charge of the inner courtyard;
(ii) Suit 3 was confined to the premises of the inner courtyard. The plaintiffs in their pleadings have neither sought a declaration of title nor have they claimed to have been dispossessed illegally by anyone. The claim is that the City Magistrate had illegally taken over management and charge of the temple. The City Magistrate passed a statutory order under Section 145 and pursuant to the order of attachment the possession of the inner courtyard was given to the receiver. An order of attachment under Section 145 could not constitute a deprivation of the right to possession of the real owner but the receiver is said to hold the property on behalf of the true owner. There being no dispossession of Nirmohi Akhara, Article 142 had no application; and
(iii) Article 47 is also not applicable. Hence, the issue of limitation was required to be adjudicated upon with reference to Article 120. The suit was instituted beyond the period of six years specified in Article 120 and hence was barred by limitation.
Justice D V Sharma held that for the purposes of determining limitation in Suit 3, Article 120 was applicable. Suit 3 was filed on 17 December 1959. The suit not having been filed within six years of the accrual of the cause of action, it was barred by limitation.
Submissions of Nirmohi Akhara
228. Mr S K Jain, learned Senior Counsel for the plaintiffs in Suit 3 made the following submissions with respect to limitation:
I No final order has been passed in the proceedings under Section 145. Hence, limitation under Article 47 of the Limitation Act 1908 has not commenced:
(i) The cause of action in the Suit arose on 5 January 1950 when the receiver took charge of the inner courtyard;
(ii) The Magistrate’s order under Section 145 dated 29 December 1949 was a preliminary order and provided the cause of action. However, the limitation for such a suit would commence only upon passing of a final order in the proceedings under Section 145. In the present case, as noted by the Magistrate in the order dated 31 July 1954, the proceedings under Section 145 had not been disposed of and therefore, the final order had still not been passed. The proceedings under Section 145 continue to remain pending; and
(iii) The suit is governed by Article 47 of the Limitation Act 1908. The limitation of three years for a suit under Article 47 commences from the date of the final order in the case. Under Article 47, the first column contains the description of the suit and refers to a person bound by an order respecting the possession of immovable property made under the CrPC. The third column under Article 47 specifies the time from which limitation begins to run and mentions the commencement of limitation from the date of the passing of the final order. A suit that is categorised in the first column would be governed only by that, unaffected by the use of the words in the third column. The Limitation Act bars suits filed “after” the limitation period but does not prevent suits from being instituted “before” the period has commenced.
II Denial of Nirmohi Akhara’s ‘absolute’ shebaiti rights of management and charge is a continuing wrong. By virtue of Section 23 of the Limitation Act 1908, a fresh cause of action arose every day:
(i) The limitation for Suit 3 is governed by Article 142 as the plaintiffs were dispossessed of their property. Article 142 is applicable when the suit is filed for possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. The plaintiffs in Suit 3 had the management and charge over the idols and the temple as they were performing the puja, taking care of the pilgrims and performing other duties. The rights to do puja, et al. i.e. the shebaiti rights are attached to the possession of the immovable property. The plaintiff relied on the following precedents to illustrate its proprietary interest in the property:
(a) Angurbala Mullick v Debabrata Mullick127 where it was held that a shebait enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right; and
(b) Commissioner, Hindu Religious Endowments v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt128 where it was held that in shebaitship both the elements of office and property, of duties and personal interest are blended together. The office of the Mahant has the character of a proprietary right which, though anomalous to some extent, is still a genuine legal right.
(ii) A suit for restoration of shebaiti rights would be for recovery of possession and restoration of management. Article 142 would be attracted which provides a limitation of 12 years from the date of dispossession;
(iii) The cause of action arose on 5 January 1949 by which Nirmohi Akhara was denied its absolute right as a shebait and it continues to be denied those rights. The obstruction of the plaintiff’s right to manage the bhog and prayers independently is a continuing wrong under Section 23 of the Limitation Act and every obstruction provides a fresh cause of action. Reliance was placed upon the judgement of the Privy Council in Sir Seth Hukum Chand v Maharaj Bahadur Singh129 where the obstruction of prayer and worship has been held to be a continuing wrong.
III Article 120 of the Limitation Act 1908 is a residuary provision and is applicable when no other provision, including Articles 47 and 142 applies. The doctrine of merger applies, and the preliminary order dated 29 December 1949 passed under Section 145 merges with the order dated 26 April 1955 by which the ad-interim injunction in Suit 1 was upheld by the High Court:
(i) The submission is on the assumption (without conceding) that Articles 47 and 142 are not applicable and Article 120 applies;
(ii) By virtue of the doctrine of merger, the order of the Additional City Magistrate dated 29 December 1949 in the proceedings under Section 145 of the CrPC merged with the order of the High Court dated 26 April 1955 in the appeal against the interim order to maintain status quo in Suit 1. Therefore, the plaintiff’s right to sue accrued on 26 April 1955. Suit 3 which was filed on 17 December 1959 was within the period of limitation of six years. Reliance was placed upon the decisions of this Court in:
(a) Chandi Prasad v Jagdish Prasad130, where it was held that the doctrine of merger postulates that there cannot be more than one operative decree governing the same subject-matter at a given point of time. When the appellate court passes a decree, the decree of the trial court merges with the decree of the appellate court, irrespective of whether the appellate court affirms, modifies or reverses the decree passed by the trial court; and
(b) S S Rathore v State of Madhya Pradesh131, where it was held that a decree of a court of first instance merges in the decree passed in appeal.
IV In a suit for restoration of possession from a receiver, the question of limitation can never arise and such suits can never be barred by limitation.
(i) So long as the property of a person from whom possession was taken continues to be under a receiver, the question of limitation can never arise; and
(ii) The property cannot remain custodia legis ad-infinitum and it is incumbent for the court to adjudicate upon the issue of title and the suit cannot be dismissed as barred by limitation.
V In determining the entitlement to mesne profits, the question of title will have to be adjudicated upon and possession will have to be delivered by the receiver to the true owner:
As the property is under the control of the receiver, a suit for mesne profits for income derived by the receiver can be filed by the true owner and in such a suit, any benefit which accrues would give rise to a continuing cause of action.
VI It is the plaintiff’s claim that Nirmohi Akhara is also the shebait of the janmasthan and the idols. For the same reason that Suit 5 of 1989 was held to be within limitation i.e. the deity was a perpetual minor, the suit of the plaintiff cannot be barred by limitation.
229. Mr K Parasaran, learned Senior Counsel for the plaintiffs in Suit 5 refuted the submissions made by Mr S K Jain and made the following submissions with respect to limitation and the maintainability of Suit 3:
I The Magistrate’s order under Section 145 is an exercise of police powers for securing peace and does not determine title or possession over the property. Since such an order does not purport to give possession to any party, the question of Nirmohi Akahara being dispossessed on account of an order in proceedings under Section 145 proceedings does not arise.
(i) An order under Section 145 is an exercise of police powers for securing peace. It is only for preventing breach of peace and does not determine the rights of parties with respect to title over property. Section 145 proceedings simply freeze or protect the rights of the rightful owner. An order of the Magistrate in exercise of the executive function can never be a wrongful act or cause injury. The order of a civil court cannot be considered as a ‘wrong’ giving rise to a cause of action. Only a judicial authority has the power to decide whether the action of the civil court is wrong. Questions relating to title and possession are exclusively matters for civil courts and the Magistrate’s order under Section 145 cannot oust the jurisdiction of the civil court;
(ii) The proceedings under Section 145 are distinct and there exists no bar for parties to file a civil suit for title or possession after the order has been passed by the Magistrate. The jurisdiction of the civil court is not curtailed by the order of the Magistrate under Section 145 and civil proceedings can be pursued independently. Reliance was placed upon the decisions of this Court in the following cases:
(i) Bhinka v Charan Singh132, where it was held that under Section 145(1), the Magistrate’s jurisdiction is confined only to decide whether, any and if so, which of the parties was on the date of the preliminary order in possession of the land in dispute. The order only declares the actual possession of a party on a specified date and does not purport to give possession or authorise any party to take possession;
(ii) Jhummamal alias Devandas v State of Madhya Pradesh133, where it was held that an order made under Section 145 deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The unsuccessful party therefore must get relief only in the civil court in a properly constituted suit. A party may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached in the proceedings under Section 145; and
(iii) Deokuer v Sheoprasad Singh134, where it was held that in a suit for declaration of title to property filed when the property is attached under Section 145, it is not necessary to ask for further relief of delivery of possession.
(iii) Mr S K Jain’s submission in Suit 3 stating that the proceedings under Section 145 have not attained finality and therefore, the limitation under Article 47 cannot begin to run cannot be accepted. Irrespective of the proceedings under Section 145, Nirmohi Akhara could independently have filed a suit for title and possession.
II Section 3 of the Limitation Act 1908 provides that every suit instituted after the period of limitation shall be dismissed. The Supreme Court can dispose of appeals only on the ground of limitation. Unlike the Trial Court that has to decide on all issues, the Supreme Court is not bound to do so once it comes to the conclusion that a suit is barred by limitation.
(i) Reliance was placed upon the decision of this Court in Yeswant Deorao Deshmukh v Walchand Ramchand Kothari135, where it was observed that the rules of equity have no application where there are definitive statutory provisions specifying the grounds on the basis of which alone stoppage or suspension of the running of time can arise. While the courts necessarily are “astute in checkmating or fighting fraud”, it should be equally borne in mind that statutes of limitation are statutes of repose.
III The High Court’s decision has to be set aside. The decree is contrary to the law of pleadings. No prayer for a partition of land was sought by Nirmohi Akhara. The High Court’s order has not been passed in pursuance of the ends of justice but is an end of justice.
IV Section 28 of the Limitation Act 1908 extinguishes the substantive rights of a person. Accordingly, if the party fails on the issue of limitation, then it also fails on all other substantive issues and therefore, this Court cannot give any relief to Nirmohi Akhara in Suit 3.
V Article 120 alone governs the suit filed by Nirmohi Akhara. Articles 142 and 144 of the Limitation Act are not applicable. Once limitation starts to run, it cannot be stopped.
(i) Reliance was placed upon the decision of the Privy Council in Raja Rajgan Maharaja Jagatjit Singh v Raja Partab Bahadur Singh136, where it was held with regard to the statutory period of limitation, that Article 47 does not apply, as there has been no order for possession by the Magistrate under Section 145. In a suit for declaration of title, Articles 142 and 144 do not apply and the suit is governed by Article 120.
230. Dr Rajeev Dhavan, learned Senior Counsel for the plaintiff in Suit 4 made the following submissions with respect to limitation of Suit 3: I The relief which Nirmohi Akhara has sought in Suit 3 is for management and charge. However in its plaint, it has claimed that Janmasthan ‘belongs’ and ‘has always belonged to it’ and the use of these terms in a loose sense may in a given context be inferred as ‘possession’, ‘ownership’ and ‘implied title’.
(i) The relief sought by Nirmohi Akhara was only with respect to management and charge of the idols of Lord Ram. The case of Nirmohi Akhara is based on the deprivation of shebaiti rights by an order under Section 145 of the CrPC 1898. The claim is against the State for possession of usufruct and to render services to the deity. Words such as “belong” or “belonging” have a flexible meaning. Reliance was placed upon the decisions of this Court in:
(a) Late Nawab Sir Mir Osman Ali Khan v Commissioner of Wealth Tax, Hyderabad137 in relation to the discussion on the meaning of ‘belonging to’; and
(b) Raja Mohammad Amir Ahmad Khan v Municipal Board Sitapur138 in relation to the discussion on making unequivocal assertions in the plaint and reading the plaint in its entirety to decipher the true meaning.
(ii) Nirmohi Akhara had claimed in paragraph 2 of its plaint that the Jamnasthan belongs and has always belonged to it. Further, it has been claimed in paragraph 4 of the plaint that the temple has been in the possession of the plaintiff. However, in the written submissions, the plaintiff has adverted to a claim of ownership and possession.
(iii) Use of the terms ‘belongs’ or ‘belonging to’ may in a given context be inferred as ‘possession’, ‘ownership’ and ‘implied title’. The term
‘belongs’ or ‘belonging to’ is not a term of art and does not have a definitive meaning. Its interpretation can be open.
II Nirmohi Akhara is using the term ‘belongs’ to claim title and obviate the bar of limitation. The term ‘belongs’ should be given its ordinary meaning. If Nirmohi Akhara claims title for itself then it is at odds with the suit of the deity. It can only claim ancillary rights:
(i) Nirmohi Akhara merely claims to serve the idol and is not claiming the idol itself. Nirmohi Akhara is claiming a duty and not the right to ownership and title. Accordingly, only Article 120 can apply; and
(ii) Unlike the law of trusts in the United Kingdom, in India, no ownership or title devolves upon the shebait. The shebait is not the owner of the property of the idol.
III Nirmohi Akhara has used the proceedings under Section 145 to urge that the action of the government in denying them absolute shebait rights is a continuing wrong:
(i) Section 145 proceedings are not for determining claims for title or ownership. Nothing prevented Nirmohi Akhara from filing a declaratory suit for possession and title; and
(ii) The specific date pleaded of when the cause of action arose was 5 January 1950. Where the law has interfered to take away possession under the order of the Magistrate, the period of six years started on that date and there was no scope for invoking a continuing wrong because the action was complete, and remedies lay elsewhere.
Having adverted to the submissions which were urged by the learned Senior Counsel on the issue of whether Suit 3 is barred by limitation, we now proceed to analyse various provisions of the CrPC 1898 and Articles of the Limitation Act 1908.
Nature and Scope of Section 145 proceedings
231. The Magistrate attached the property by an order dated 29 December 1949 made under Section 145 of the CrPC 1898. The plaintiffs in Suit 3 state that the cause of action arose on 5 January 1950 when the receiver took charge of the property and they were denied charge and management of the temple.
232. Section 145 was included in Chapter XII of the Code of 1898, titled “Disputes as to Immovable Property”. Section 145 states thus:
“Section 145. Procedure where dispute concerning land, etc., is likely to cause breach of peace
(1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section the expression “land or water” includes building, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:
Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:
Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) If the Magistrate decides that one of the parties was or should under the first proviso to sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.”
Section 145 is recognised to be a branch of the preventive jurisdiction of the Magistrate.139 Section 145(1) can be invoked on the satisfaction of the Magistrate that “a dispute likely to cause a breach of the peace exists…”. The provision relates to disputes regarding possession of land or water or its boundaries which may result in breach of the peace. The function of the Magistrate is not to go into questions of title, but to meet the urgency of the situation by maintaining the party in possession. The Magistrate is empowered to call upon the parties to put in written statements in support of their claim to “actual possession”. Such an order is to be served as a summons upon the parties. The Magistrate is to peruse the statements, hear the parties and weigh the evidence, in order to ascertain who was in possession at the date of the order. The Magistrate may make that determination “if possible” to do so. Moreover, the determination is about the factum of possession on the date of the order “without reference to the merits of the claim of any of such parties to a right to possess the subject of the dispute”. These words indicate that the Magistrate does not decide or adjudicate upon the contesting rights to possess or the merits of conflicting claims. The Magistrate is concerned with determining only who was in possession on the date of the order. If possession has been wrongfully taken within two months of the order, the person so dispossessed is to be taken as the person in possession. In cases of emergency, the Magistrate can attach the subject of the dispute, pending decision. The action ultimately contemplated under Section 145 is not punitive, but preventive, and for that purpose is provisional only till a final or formal adjudication of rights is done by a competent court in the due course of law. Thus, nothing affecting the past, present and future rights of parties is contemplated under the provision.
233. The object of the provision is merely to maintain law and order and to prevent a breach of the peace by maintaining one or other of the parties in possession, which the Magistrate finds they had immediately before the dispute, until the actual right of one of the parties has been determined by a civil court.140 The object is to take the subject of dispute out of the hands of the disputants, allowing the custodian to protect the right, until one of the parties has established her right (if any) to possession in a civil court.141 This is evident from the provisions of sub-section (6) of Section 146. The Magistrate declares the party which is entitled to possession “until evicted therefrom in due course of law.” While proceeding under the first proviso, the Magistrate may restore possession to a party which has been wrongfully and forcibly dispossessed. No party can be allowed to use the provisions of Section 145 for ulterior purposes or as a substitute for civil remedies. The jurisdiction and power of the civil court cannot in any manner be hampered.142
234. This Court has analysed the nature and scope of proceedings under Section 145 in the following cases:
(i) In Bhinka v Charan Singh143, the respondent, claimed the lands in dispute “to be his sir”, while the appellants claimed to be in possession of the lands as hereditary tenants. The Magistrate initiated proceedings under Section 145, attached the lands in dispute and directed them to be placed in possession of a superdgidar pending disposal of those proceedings. After enquiries, the Magistrate concluded that the appellants were entitled to be in possession until evicted in due course of law. Thereafter, the respondent filed a suit before the Revenue Courts. The appeal before the Supreme Court arose from that proceeding. One of the issues before this Court was whether the appellants had taken possession in accordance with the provisions of Section 145. Justice Subba Rao, speaking for a three judge Bench of this Court, held thus:
“16… Under Section 145(6) of the Code, a Magistrate is authorized to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide a party’s title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is co-terminus with the passing of a decree by a civil court and the moment a civil court makes an order of eviction, it displaces the order of the criminal court. The Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani [(1901) LR 29 IA 24, 33] tersely states the effect of orders under Section 145 of the Code of Criminal Procedure thus:
“These orders are merely police orders made to prevent breaches of the peace. They decide no question of title…”.
We, therefore, hold that a provisional order of a Magistrate in regard to possession irrespective of the rights of the parties cannot enable a person to resist the suit under Section 180 of the Act.”
(Emphasis supplied)
(ii) In R H Bhutani v Miss Mani J Desai144, the appellant entered into a leave and license agreement with the first respondent to occupy a cabin owned by her. When a dispute over increase in compensation arose between the parties, the first respondent sought to evict the appellant and also hand over the possession of the cabin to the second and third respondents. Thereafter, the appellant filed an application under Section 145 and the Magistrate commenced the proceedings. While the proceedings were pending, the respondent filed a civil suit. The Magistrate concluded that appellant was in actual possession of the cabin and had been forcibly dispossessed. In the Revision Petition before the High Court, the Magistrate’s order was set aside and it was held that the Magistrate had breached the scope of his powers under Section 145. The order of the High Court was assailed before this Court, which set aside the order of the High Court and restored the order of the Magistrate. Justice JM Shelat, speaking for a three judge Bench of this Court discussed the scope of proceedings under Section 145 if the following terms:
“8. The object of Section 145, no doubt, is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court… The enquiry under Section 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties.”
(Emphasis supplied)
(iii) In Shanti Kumar Panda v Shakuntala Devi145, there was a dispute between the parties regarding a shop. Proceedings under Section 145 were commenced on the basis of a complaint filed by the appellant and the Magistrate attached the property. The respondent, who claimed to be interested in the subject-matter of the dispute was not allowed to be impleaded in the proceedings. The final order under Section 145 was in favour of the appellant. Revision petitions against the order were dismissed. Thereafter, the respondent filed a civil suit and secured an injunction. The injunction was however, vacated by the District Court on the ground that since Section 145 proceedings had terminated in the appellant’s favour, the Trial Court was not justified in issuing the injunction unless and until the order of the Magistrate was superseded by a civil court’s decree and no injunction could be granted while the property was
‘custodia legis’. The High Court reversed the District Court’s order. The decision of the High Court was assailed before this Court. A three judge Bench of this Court dismissed the appeal and dealt with the nature of proceedings under Section 145. Justice J M Shelat, speaking for the Court held:
“10. The proceedings under Sections 145/146 of the Code have been held to be quasi-civil, quasi-criminal in nature or an executive or police action. The purpose of the provisions is to provide a speedy and summary remedy so as to prevent a breach of the peace by submitting the dispute to the Executive Magistrate for resolution as between the parties disputing the question of possession over the property. The Magistrate having taken cognizance of the dispute would confine himself to ascertaining which of the disputing parties was in possession by reference to the date of the preliminary order or within two months next before the said date, as referred to in the proviso to sub-section (4) of Section 145 and maintain the status quo as to possession until the entitlement to possession was determined by a court, having competence to enter into adjudication of civil rights, which an Executive Magistrate cannot. The Executive Magistrate would not take cognizance of the dispute if it is referable only to ownership or right to possession and is not over possession simpliciter…”
The Court in the following observations dealt with the interplay between the order of a Magistrate and the jurisdiction of a civil court:
“15. It is well settled that a decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. (See Sarkar on Evidence, 15th Edn., p. 845.) A decision given under Section 145 of the Code has relevance and is admissible in evidence to show: (i) that there was a dispute relating to a particular property; (ii) that the dispute was between the particular parties; (iii) that such dispute led to the passing of a preliminary order under Section 145(1) or an attachment under Section 146(1), on the given date; and (iv) that the Magistrate found one of the parties to be in possession or fictional possession of the disputed property on the date of the preliminary order. The reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent court and the competent court is not bound by the findings arrived at by the Magistrate even on the question of possession though, as between the parties, the order of the Magistrate would be evidence of possession. The finding recorded by the Magistrate does not bind the court. The competent court has jurisdiction and would be justified in arriving at a finding inconsistent with the one arrived at by the Executive Magistrate even on the question of possession.”
(Emphasis supplied)
The Court held that the order passed by the Magistrate will not be treated as binding even the interlocutory jurisdiction of the civil court under Order XXXIX of the Code of Civil Procedure:
“22…The civil court shall also respect such order and will be loath to arrive at an interim arrangement inconsistent with the one made by the Executive Magistrate. However, this is far from holding that the civil court does not have jurisdiction to make an order of injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. There may be cases such as one where the order of the Executive Magistrate can be shown to be without jurisdiction, palpably wrong or containing self-contradictory findings. For example, the Magistrate may have made an order treating the party dispossessed beyond two months to be as in possession. There may be cases where in spite of the order made by the Executive Magistrate based on the evidence adduced before it, the competent court, based on the material produced before such court, may be inclined to hold that prima facie a very strong case for retaining or placing one of the parties in possession of the suit property is made out or where it will be totally unjust or inequitable to continue one party in possession of the property as ordered by the Executive Magistrate. In such exceptional situations, the competent court (which will mostly be a civil court) may have jurisdiction for granting an order of injunction in departure from the findings recorded and the declaration made by the Executive Magistrate under Section 145 of the Code of Criminal Procedure. The order under Section 146 of the Code would not pose a problem of that magnitude. Inasmuch as the property is under attachment and is placed in the hands of a receiver, the civil court can comfortably examine whether it would be just and expedient to continue with the attachment and with the same receiver or to appoint another receiver or to make some other interim arrangement during the pendency of the civil suit.”
(Emphasis supplied)
(iv) In Surinder Pal Kaur v Satpal146, reliance was placed upon the decision in Shanti Kumar Panda. Justice Dipak Misra (as the learned Chief Justice then was) speaking for the two judge Bench, held thus:
“10… It is a settled position of law that the observations made in the proceedings drawn under Section 145 CrPC do not bind the competent court in a legal proceeding initiated before it.”
235. Section 145 proceedings do not purport to decide a party’s title or right to possession of the land. The property held in attachment in proceedings under Section 145 is ‘custodia legis’. Hence, it is not necessary to secure possession from a party who is not in possession and is hence, not in a position to deliver possession. This Court has analysed the nature of the property under attachment in the following decisions:
(i) In Deokuer v Sheoprasad Singh147, a three judge Bench of this Court, held that property held under attachment under Section 145 is ‘custodia legis’. The appeal arose out of a suit brought by the appellants in 1947 for a declaration that the respondents had acquired no right or title to a property under certain deeds and that the deeds were inoperative and void. The suit was decreed by the Trial Court, but on appeal, the High Court set aside the decree. The High Court held that as the appellants were not in possession of the property at the date of the suit, their suit must fail under the proviso to Section 42 of the Specific Relief Act as they had failed to ask for the further relief of recovery of possession from the respondents. On the date of the suit, the property in dispute had been attached by the Magistrate, exercising his powers under Section 145 and was not in the possession of any party. The issue that arose before this Court was whether in view of the attachment, the appellants could have in their suit, sought the relief for delivery of possession to them. Speaking for the three judge Bench, Justice A K Sarkar held thus:
“4. In our view, in a suit for declaration of title to property filed when it stands attached under Section 145 of the Code, it is not necessary to ask for the further relief of delivery of possession. The fact, if it be so, that in the case of such an attachment, the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant. On the question however whether the Magistrate actually does so or not, it is unnecessary to express any opinion in the present case.
5. The authorities clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession: see Sunder Singh — Mallah Singh Sanatan Dharam High School, Trust v. Managing Committee, Sunder Singh-Mallah Singh Rajput High School [(1957) LR 65 IA 106] . Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants. The Magistrate was in possession, for whomsoever, it does not matter, and he was not of course a party to the suit. It is pertinent to observe that in Nawab Humayun Begam v. Nawab Shah Mohammad Khan [AIR (1943) PC 94] it has been held that the further relief contemplated by the proviso to Section 42 of the Specific Relief Act is relief against the defendant only. We may add that in K. Sundaresa Iyer v. Sarvajana Sowkiabil Virdhi Nidhi Ltd. [(1939) ILR Mad 986] it was held that it was not necessary to ask for possession when property was in custodia legis. There is no doubt that property under attachment under Section 145 of the Code is in custodia legis. These cases clearly establish that it was not necessary for the appellants to have asked for possession.”
(ii) In Shanti Kumar Panda, this Court formulated the legal principles governing the effect of the order of a Magistrate under Section 145/146 when legal proceedings are instituted before a court of competent jurisdiction:
“(1) The words “competent court” as used in sub-section (1) of Section 146 of the Code do not necessarily mean a civil court only. A competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to possession over the property forming the subject-matter of proceedings before the Executive Magistrate:
(2) A party unsuccessful in an order under Section 145(1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under Section 146(1) of the Code it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the court, it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession.
(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and weight before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence.
(4) The court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by court, dictated by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on the power of court. The court does have jurisdiction to make an interim order including an order of ad interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad interim order the party unsuccessful before the Executive Magistrate may on material placed before the court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-inconsistent in which or the like cases the court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the court — final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145.”
(Emphasis supplied)
The above formulation is essentially a restatement of the principles which emerge from a consistent line of precedent of the Court [See also Jhummamal alias Devandas v State of Madhya Pradesh148.]
236. Where a suit is instituted for possession or for declaration of title before a competent civil court, the proceedings under Section 145 should not continue. This Court has analysed the above proposition of law in the following cases:
(i) In Amresh Tiwari v Lalta Prasad Dubey149, Justice S N Variava, speaking for a three judge Bench of this Court held thus:
“12… The law on this subject-matter has been settled by the decision of this Court in the case of Ram Sumer Puri Mahant v. State of U.P. [(1985) 1 SCC 427 : 1985 SCC (Cri)
98] In this case it has been held as follows: (SCC pp. 428-29, para 2)
“When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us…parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue….”
The Court rejected the submission that the principle in Ram Sumer Puri Mahant v State of UP150 will apply only after the civil court has adjudicated on the issue:
“13. We are unable to accept the submission that the principles laid down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] would only apply if the civil court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil court and parties are in a position to approach the civil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.”
Dealing with the issue as to when the proceedings under Section 145 should not be pursued any further on the institution of a suit for adjudication, this Court held:
“14. Reliance has been placed on the case of Jhummamal v. State of M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri) 974] It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 of the Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 of the Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 of the Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate.”
(Emphasis supplied)
Having set out the position established in law with respect to Section 145 proceedings, we now advert to the application of the law to the set of facts in the present case. The provisions of Section 145 can be invoked only when there is a danger of a breach of peace. The jurisdiction of the Magistrate does not extend to adjudicate into disputed questions of title. The Magistrate has been vested with the authority to meet the urgency of the situation and maintain peace. The determination of the Magistrate is confined to which party was in actual possession on the date of the order. The real purpose is to decide who has actual physical possession and not legal possession supported by title over the land. To initiate proceedings under Section 145, the Magistrate has to be satisfied of the existence of a dispute which is likely to cause a breach of peace. The enquiry by the Magistrate is of a summary nature, the object being to ensure tranquillity in the locality when the dispute is likely to result in a breach of peace.
237. On 29 December 1949, a preliminary order under sub-section (1) of Section 145 was issued by the Additional City Magistrate, Faizabad-cum- Ayodhya. Simultaneously an order of attachment was also passed under the second proviso to sub-section (4) treating the situation to be one of emergency. On 5 January 1950, the receiver took charge and made an inventory of the attached items. Pursuant to the order of the Magistrate, only two or three pujaris were permitted to go inside the place where idols were kept to perform religious ceremonies like bhog and puja and the general public was permitted to have darshan only from beyond the grill-brick wall. The proceedings under Section 145 were not judicial; the Magistrate while exercising authority under the provision was not empowered to deal with the substantive rights of the parties. The proceedings under Section 145 are not akin to a civil proceeding. Adjudication of substantive claims over title and ownership over a property can be decided in a competent civil proceeding. Proceedings under Section 145 are not in the nature of a trial before a civil court and are merely in the nature of police proceedings. The Magistrate’s order cannot adversely impact the substantive rights of parties. Upon the attachment of the property and after the appointment of the receiver, the property became custodia legis and the receiver held the property for the benefit of the true owner. The receiver so appointed could not be described as a party interested in the dispute. By his subsequent orders dated 30 July 1953 and 31 July 1954, the Magistrate deferred the proceedings and continued the order of attachment.
238. Justice Sudhir Agarwal correctly observed that in view of the ad-interim injunction in Suit 1 by which status quo was ordered and sewa-puja was continued, the proceedings under Section 145 could not have been dropped as it would have disturbed the status quo. Justice Agarwal observed:
“2244. … From perusal of injunction order passed by the Civil Court, we find that on 16th January, 1950 a simple order, in terms of the prayer made in the interim injunction application, was passed directing the parties to maintain status quo. Thereafter on 19th January, 1950, the order was modified but the Civil Court did not appoint a Receiver of its own and also did not direct the City Magistrate to get the possession transferred to any other person or another Receiver of the Court instead of the Receiver appointed by the Magistrate. On the contrary, in Suit-1, the City Magistrate was also impleaded as one of the defendants and the Civil Court passed an order directing the defendants to maintain status quo. It also clarified that the Sewa, Puja as was going on, shall continue…the Magistrate could not have ignored this order by dropping the proceedings as that would have resulted in discharge of Receiver and release of the property attached and placed in his charge. In other words, it could have been construed by the Civil Judge as an order disobeying the order of status quo. Had the Civil Judge passed an order appointing a Court’s Receiver and directing the Magistrate to hand over possession of the property to him, the position might have been different. In these circumstances, if the Magistrate did not drop the proceedings but deferred it, we find no fault on his part. Moreover, when the earlier order of the Magistrate, attaching the property and placing it in the charge of Receiver, could not have resulted in giving a cause of action to the plaintiffs to file suit, we fail to understand as to how the subsequent order, which merely deferred the pending proceedings, would lend any help. The order of attachment passed by the Magistrate itself does not give a cause of action and on the contrary it only makes the things known to the party that there appears to be some dispute about the title and/or possession of the property concerned and also there is apprehension of disturbance of public peace and order. The cause of action virtually is known to the party that there exists some dispute and not the order of the Magistrate whereby he attached the property in question and placed it in the charge of the Receiver.”
(Emphasis supplied)
239. In view of the settled position in law, as it emerges from the decisions of this Court, after the Magistrate’s order dated 29 December 1949 for attachment of property, nothing prevented Nirmohi Akhara from filing a declaratory suit for possession and title. The Magistrate’s order did not decide or adjudicate upon the contesting rights to possess or the merits of conflicting claims of any of the parties. Substantive rights with respect to title and possession of the property could have been dealt with only in civil proceedings before a civil court. The Magistrate did not have jurisdiction to determine questions of ownership and title. The proceedings under Section 145 could not have resulted in any adjudication upon title or possession of the rightful owner as that is within the exclusive domain of civil courts. Nirmohi Akhara cannot take the defence that no final order had been passed in Section 145 proceedings and as a result limitation did not commence. The Magistrate simply complied with the directions given by a civil court with respect to maintaining status quo in Suit 1 and accordingly, deferred the proceedings under Section 145.
The case under Article 142 of the Limitation Act 1898
240. Article 142 governs a suit for possession of immoveable property when the plaintiff while in possession has been dispossessed or “has discontinued the possession”. The period of limitation under Article 142 is 12 years. Time begins to run from the date of the dispossession or discontinuance. Nirmohi Akhara claims that the cause of action arose on 5 January 1950 and the suit which was instituted on 17 December 1959 is within the limitation of twelve years.
The concepts of dispossession and discontinuance of possession
241. Besides the absence of specific relief in Nirmohi’s Suit with respect to seeking possession of the Janmasthan temple, there is another aspect to be explored with respect to the applicability of the concepts of dispossession and discontinuance of possession in the facts of the present case. Article 142 of the Limitation Act 1908 encompasses a suit for possession of immovable property. It covers those suits for possession of immoveable property which fall within either of two descriptions. The first is when the plaintiff while in possession of the property has been dispossessed. The second covers a situation where the plaintiff while in possession has discontinued the possession. In other words, Article 142 which deals with suits for possession of immoveable property qualifies this with the requirement that the plaintiff should have been in possession of the property when either of the two events have taken place namely, the event of being dispossessed or, as the case may be, the event of having discontinued the possession. Article 142 has not confined the description of the suit to simply a suit for possession of immoveable property. The provision incorporates a requirement of prior possession of the plaintiff and either the dispossession or the discontinuance of possession while the plaintiff was in possession. The period of limitation is 12 years and time begins to run from the date of dispossession or discontinuance.
242. Article 144 is a residuary provision dealing with suits for possession of immoveable property or any interest in immoveable property not specifically provided for elsewhere. As a residuary provision, Article 144 applies to suits for possession of immoveable property which do not fall within a description which is specially enumerated in the articles of the schedule. In the case of Article 144, the period of limitation is 12 years and time begins to run when the possession of the defendant has become adverse to the plaintiff.
243. Article 142, as seen above, incorporates two distinct concepts. The first is of dispossession and the second is of discontinuance of possession. Dispossession connotes an ouster; it involves a situation where a person is deprived of her/his possession with the coming of another person into possession. Dispossession implies deprivation of a right to possess which is not voluntary and involves an act of ouster which displaces the person who was in possession of the property. The expression ‘dispossession’ is defined in Black’s Law Dictionary151 as follows:
“Deprivation of, or eviction from, rightful possession of property; the wrongful taking or withholding of possession of land from the person lawfully entitled to it; ouster.”
The expressions ‘discontinuance’ and ‘dispossession’ have been defined in P Ramanatha Aiyar’s Advanced Law Lexicon152:
“Discontinuance means that a person in possession goes out and is followed into possession by another person. It implies that all indications of occupation have been withdrawn.”
“Dispossession or ouster is wrongfully taking possession of land from its rightful owner. The dispossession applies only to cases where the owner of land has, by the act of some person, been deprived altogether of his dominion over the land itself, or the receipt of its profits. A person cannot be dispossessed of immoveable property unless he was possessed thereof at the time.”
Dispossession presupposes the pre-existing possession of the person at a given time who was subsequently dispossessed. A person who is not in possession cannot be said to be dispossessed. Discontinuance on the other hand, embodies a notion of abandonment of possession and is sometimes described as a voluntary act of the person who discontinues possession on his own accord. G W Paton153 in his seminal treatise on “Jurisprudence” notes that “as with most words in the English language, the word ‘possession’ has a variety of uses and a variety of meanings, depending upon context and use”. The author tells us that
“the search for one appropriate, complete meaning for the word is likely to be a fruitless one”.
Black’s Law Dictionary154 defines the expression ‘possession’ thus:
“1. The fact of having or holding property in one’s power; the exercise of dominion over property.
2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.”
In Supdt and Remembrancer of Legal Affairs West Bengal v Anil Kumar Bhunja155, this Court observed that “possession is a polymorphous term” and, therefore, it was not possible to ascribe a meaning which would apply in every context. Drawing sustenance from Salmond’s Jurisprudence, the Court noted that possession implies a right and a fact; the right to enjoy annexed to the right to property and the fact of the real intention. Possession as a concept comprehends
“corpus possessionis and animus possidendi”. The former embraces the power to use the thing in possession and the existence of a ground of expectation that the use of the possession shall not be interfered with. The latter postulates the intent to appropriate to oneself the exclusive use of the thing which is possessed.
244. In Shyam Sunder Prasad v Raj Pal Singh156, this Court speaking through a Bench of three judges elaborated on the distinction between Articles 142 and 144 of the Limitation Act 1908. The Court observed:
“3…Under the old Limitation Act, all suits for possession whether based on title or on the ground of previous possession were governed by Article 142 wherein the plaintiff while in possession was dispossessed or discontinued in possession. Where the case was not one of dispossession of the plaintiff or discontinuance of possession by him, Article
142 did not apply. Suits based on title alone and not on possession or discontinuance of possession were governed by Article 144 unless they were specifically provided for by some other articles. Therefore, for application of Article 142, the suit is not only on the basis of title but also for possession.”
245. In order to bring the suit within the purview of Article 142, the following requirements must be fulfilled:
(i) The suit must be for possession of immoveable property;
(ii) The plaintiff must establish having been in possession of the property; and
(iii) The plaintiff should have been dispossessed or must have discontinued possession while in possession of the property.
For Article 142 to apply, these requirements must cumulatively be established.
246. The Suit by Nirmohi Akhara postulates that the Janmasthan, commonly known as Janmabhumi, which is the birth-place of Lord Ram “belongs and has always belonged” to Nirmohi Akhara which has been “managing it and receiving offerings”. According to the plaintiffs, the temple has ever since been in the possession of Nirmohi Akhara. The grievance in the Suit is that the plaintiffs were wrongfully deprived of their management and charge of the temple as a result of the order of attachment under Section 145 and the proceedings have been unduly prolonged by the Magistrate with the connivance to the Muslim parties. Nirmohi Akhara prays for the removal of the receiver from management and charge and for delivering it to the plaintiffs. Essentially, it is on the basis of the expressions “belongs” in paragraph 2 and “possession” in paragraph 4 of the pleadings that Nirmohi Akhara has sought to bring the suit within the purview of Article 142 (and hence, outside the purview of residuary Article 120).
247. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the Sunni Central Waqf Board, has made a painstaking effort to demonstrate how a careful attempt has been made on behalf of Nirmohi Akhara to travel beyond the pleadings and more specifically the relief which has been claimed in the suit by seeking to expand the scope of the suit in the written submissions.
248. In our view, it would be instructive having set out the ambit of Suit 3, to demonstrate how the written submissions attempt (through the craft of Counsel) to change the nature of the suit in order to bring it within limitation. As a matter of first principle, the plaint must be read as a whole. However, this is quite distinct from permitting the plaintiff to a suit to alter its nature on the basis of written submissions in appeal. Any alteration in the content of a plaint can only take place by an amendment under Order VI Rule 17 of the CPC. Instead, as we shall see, an ingenious effort has been made to gloss over the contents of the suit in the written submissions. This is impermissible. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiff in Suit 3, made the following submission in paragraph 13(d) of his written submissions:
“(d) The plaintiff – Nirmohi Akhara was not only claiming ownership and possession of the property i.e. the Main Temple or the Inner Courtyard but was also claiming to be the Manager (Shebiat) of “Janma Asthan” as well as the idols of Lord Ram Chandra, Laxmanji, Hanumanji and Saligramji.”
(Emphasis supplied)
In paragraph 17(j) of the written submissions, it has been urged:
“(j) Since the property was attached and placed under a receiver, it is incumbent for the court to decide and adjudicate the issue of title and the suits cannot be dismissed as barred by limitation. The property must revert to the rightful owner and cannot remain custodia legis for time ad-infinitum. Hence in a suit for restoration of possession from a receiver, the question of limitation can never arise and such suits cannot (sic) never become barred by limitation so long as such property continues to be under a receiver at least of a person from whom possession was taken.”
(Emphasis supplied)
Again, in paragraph 18(k), it has been stated:
“(k). Since the property is under the control of the receiver, a suit for mesne profits for incomes derived by the receiver can still be filed by the true owner and in such a suit, for which cause of action arises any benefit accrues would thus give rise to a continuous cause of action. While determining the issue of entitlement of mesne profits, the question of title will have to be adjudicated and upon adjudication possession will have to be delivered by the receiver to the true owner.
(i) Ellappa Naicken vs Lakshmana Naicken AIR 1949 Madras 71
(ii) Rajab of Venkatagiri v. Isakapalli Subbiah, ILR 26 Madras 410.” (Emphasis supplied)
Then, in paragraph 18(m), it has been stated:
“(m) The plaintiff – Nirmohi Akhara was not only claiming ownership and possession of the property i.e. the Main Temple or the Inner Courtyard but was also claiming to the Manager (Shebiat) of “Janma Asthan’ as well as the idols of Lord Ram Chandra, Laxmanji, Hanumanji and Sabgramji. It is stated for the reasons which found favour with the court to hold that the suit OOS No. 5 of 1989 is within limitation that the deity was a perpetual minor, the suit of the plaintiff Nirmohi Akhara cannot also be held to be barred by limitation.”
(Emphasis supplied)
Finally, it has been stated in paragraph 18 that:
“18. The claim of the property “belonging” to the plaintiff in the plaint is based on two-fold submissions – (i) that the property belongs to the plaintiff in the capacity of manager/shebait; and (ii) that the Plaintiff being in possession acquires possessory title in view of Section 110 Evidence Act and is entitled to be and continue in possession unless the defendant can show a better title than the Plaintiff.”
(Emphasis supplied)
This is completely at variance with the pleadigns in the suit.
249. The expression “belonging to” is not a term of art and its content varies according to context. In Raja Mohammad Amir Ahmad Khan v Municipal Board of Sitapur157, a three judge Bench of this Court considered whether the use of the expression “belonging to him” by a tenant amounted to a disclaimer of the reversionary interest of the Government. In that context, Justice N Rajagopala Ayyangar, speaking for the three judge Bench, observed:
“24…Though the word “belonging” no doubt is capable of denoting an absolute title, is nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could signified by that word. In Webster “belong to” is explained as meaning inter alia “to be owned by, be the possession of”. The precise sense which the word was meant to convey can therefore be gathered only by reading the document as a whole and adverting to the context in which it occurs.”
On the facts of the case, it was held that the circumstances of the tenancy were material for determining the nature of the assertion. The origin of the tenancy was not definitely known, the lessee had constructed super structures and the appellant and his ancestors had been enjoying the property for three quarters of a century and more. Transfers had been affected and the property had been the subject of inheritance. There was a public document to the effect that though it was government land, there was a permanent heritable and transferable right. In this context, it was held that use of the word “belonging” did not amount to repudiation of the title of the government. Similarly, the Court held that the use of the expression owner did not denote ownership in an absolute sense so as to amount to a renunciation or disclaimer of tenancy:
“25…Though divorced from the context these words are capable of being construed as an assertion of absolute ownership, they cannot, in our opinion, in the setting in which they occur and bearing in mind the history of the enjoyment by the appellant and his predecessors of this property, be deemed an assertion unequivocal in nature of absolute ownership sufficient to entail a forfeiture of a permanent tenancy of this nature. In this connection it might be noticed that this enjoyment is stated to be with the consent of the Government. If the assertion were understood to be as an absolute owner in derogation of the rights of the Government as landlord, the reference to the consent of Government to such an enjoyment would be wholly inappropriate. Consent would have relevance only if the Government had interest in the property and we, therefore, understand the passage to mean that the permanent, transferable and heritable, particularly the right to transfer which was being denied by the municipality, was stated to have been enjoyed with the consent of the Government. That is an additional reason for our holding that at the worst the assertion was not unequivocal as to entail a forfeiture of the tenancy.”
250. In Late Nawab Sir Mir Osman Ali Khan v Commissioner of Wealth Tax158, a two judge Bench of this Court construed the expression “belonging to the assessee on the valuation date” in Section 2(m) of the Wealth Tax Act 1957. In the context of the statutory provision which was being interpreted, this Court held that mere possession without a legal right would not bring the property within the meaning of the expression “net-wealth” for it would not be an asset which belongs to the assessee. The Court adverted to the decision in Raja Mohammad noting that though the phrase “belonging to” was capable of denoting an absolute title, it was nevertheless not confined to connoting that sense. In the case at hand, the Court held:
“29…We have discussed the cases where the distinction between “belonging to” and “ownership” has been considered. The following facts emerge here: (1) the assessee has parted with the possession which is one of the essentials of ownership. (2) The assessee was disentitled to recover possession from the vendee and the assessee alone until the document of title is executed was entitled to sue for possession against others i.e. other than the vendee in possession in this case. The title in rem vested in the assessee. (3) The vendee was in rightful possession against the vendor. (4) The legal title, however, belonged to the vendor. (5) The assessee had not the totality of the rights that constitute title but a mere husk of it and a very important element of the husk.”
Both these decisions, which have been pressed in aid by Dr Dhavan indicate that the expression ‘belonging to’ must receive a meaning based on context. In a given context, the words may convey the meaning of an absolute title but in other factual situations the words may convey something which falls short of an absolute interest.
251. In the present case, it is evident that the use of the expression ‘belongs’ by the Nirmohi Akhara in the plaint has been deployed only in the context of management and charge. The entire case of Nirmohi Akhara is of the deprivation of its shebaiti rights by the Magistrate’s order under Section 145. The claim of Nirmohi Akhara is against the state so as to enable the plaintiff to utilise the usufruct to render services to the deity. Nirmohi Akhara, in other words, claims ancillary rights with reference to management and charge. Indeed, the most significant aspect which emerges from the relief which has been claimed in Suit 3 is a decree for the removal of the first defendant “from the management and charge of the said temple of Janmabhumi and for delivering the same to the plaintiff”. Suit 3 filed by Nirmohi Akhara is therefore not a suit for possession which falls within the meaning and ambit of Article 142.
252. Nirmohi Akhara has instituted Suit 3 claiming to be a shebait. A four judge Bench of this Court in Angurbala Mullick v Debabrata Mullick159 dealt with the nature and position of a shebait. Justice B K Mukherjea (as he then was) speaking for the Court held that the position of a shebait in regard to the debutter property does not exactly correspond to that of a trustee in English law. In English law, the legal estate in trust property vests in the trustee. On the other hand, in the case of a Hindu religious endowment, the ownership of the dedicated property is transferred to the deity or institution as a juristic person and the shebait is a mere manager who handles the affairs with respect to the deity’s properties. Referring to the extract from the Privy Council’s decision in Vidya Varuthi Thirtha v Balusami Ayyar160, this Court observed that though, the shebait is a manager and not a trustee, shebaitship is not a ‘mere office’:
“12…The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property.”
253. A Constitution Bench of this Court speaking through Chief Justice B K Mukherjea in Commissioner, Hindu Religious Endowments Madras v Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt161, construed the position of a Matadhipati. Adverting to the earlier decision in Angurbala Mullick, this Court held that as in the case of a shebait so also in a case involving a mahant, both elements of office and property are blended together:
“11. As regards the property rights of a Mathadhipati, it may not be possible to say in view of the pronouncements of the Judicial Committee, which have been accepted as good law in this country ever since 1921, that a Mathadhipati holds the Math property as a life tenant or that his position is similar to that of a Hindu widow in respect to her husband’s estate or of an English Bishop holding a benefice. He is certainly not a trustee in the strict sense. He may be, as the Privy Council [ Vide Vidya Varuthi v. Balusami, 48 IA 302] says, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such; but he is not a mere manager and it would not be right to describe Mahantship as a mere office. A superior of a Math has not only duties to discharge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom and is much larger than that of a Shebait in the debutter property. It was held by a Full Bench of the Calcutta High Court [ Vide Monahar v. Bhupendra, 60 Cal 452] that Shebaitship itself is property, and this decision was approved of by the Judicial Committee in Ganesh v. Lal Behary [63 IA 448] and again in Bhabatarini v. Ashalata [70 IA 57]. The effect of the first two decisions, as the Privy Council pointed out in the last case, was to emphasise the proprietary element in the Shebaiti right and to show that though in some respects an anomaly, it was an anomaly to be accepted as having been admitted into Hindu law from an early date. This view was adopted in its entirety by this Court in Angurbala v. Debabrata [1951 SCR 1125] and what was said in that case in respect to Shebaiti right could, with equal propriety, be applied to the office of a Mahant. Thus, in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right. It is true that the Mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with his natural family being completely cut off, the ordinary rules of succession do not apply.”
The claim of Nirmohi Akhara for management and charge therefore rests on its assertion of being a shebait. In the case of a shebait as the above decisions authoritatively explained, the elements of office and of a proprietary interest are blended together. The Suit by Nirmohi Akhara was a suit for restoration of management and charge so as to enable the Akhara to have the benefit of the usufruct in the discharge of its obligations towards the deity. The suit was therefore not a suit for possession within the meaning of Article 142. Despite the ingenuity of counsel in seeking to expand the nature and ambit of the suit, we are categorically of the view that written submissions filed in the appeal cannot be a valid basis to reconfigure the nature of the suit. The suit has to be read on the basis of the original plaint in the trial court. Despite the amendment to the plaint in Suit 3, the relief as it stands does not bring it within the ambit of Article 142. It may also be noted at this stage that during the course of the submissions, Mr S K Jain, clarified that Nirmohi Akhara by using the expression “belongs to” is not claiming title or ownership to the property. The Suit by Nirmohi Akhara is not a suit for possession. Hence, neither Article 142 nor Article 144 has any application.
254. In Ramiah v N Narayana Reddy162, a two judge Bench of this Court elaborated on the distinction between Articles 142 and 144 of the Limitation Act 1908 (corresponding to Articles 64 and 65 of the Limitation Act 1963) thus:
“9…Article 64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908), on the other hand, is a residuary article applying to suits for possession not otherwise provided for. Suits based on the plaintiff’s title in which there is no allegation of prior possession and subsequent dispossession alone can fall within Article 65. The question whether the article of limitation applicable to a particular suit is Article 64 or Article 65, has to be decided by reference to pleadings.”
There is a fundamental reason why the Suit instituted by Nirmohi Akhara is not maintainable, quite apart from the bar of limitation. Nirmohi Akhara sought a relief simpliciter of the handing over of management and charge of the Janmasthan by the receiver to it. The receiver was appointed by the Magistrate in the proceedings under Section 145. The Magistrate who attached the property holds it for the true owner who obtains an adjudication of rights before the court of competent jurisdiction. Nirmohi Akhara sought no declaration of its status or rights. It merely sought a decree against a Magistrate for the handing over of management and charge. It had to seek relief against someone interested in opposing its claim and by getting its own right adjudicated. Instead, without doing so, it merely sought a decree for the handing over of management and charge against the Magistrate. Such a suit was indeed not maintainable.
255. Once it has been held that neither Article 47 nor Article 142 is attracted, Suit 3 filed by Nirmohi Akhara is governed by the provisions of Article 120, the residuary article in the Limitation Act 1908. The period of limitation under Article 120 is six years. Nirmohi Akhara claims that the cause of action arose on 5 January 1950. The suit was instituted on 17 December 1959. Hence, the suit is outside the prescribed period of limitation and is barred.
Continuing wrong
256. The alternate submission which has been urged on behalf of the Nirmohi Akhara by Mr S K Jain is based on the provisions of Section 23 of the Limitation Act 1908. It is submitted that the denial or obstruction of Nirmohi Akhara’s ‘absolute’ shebait rights of management and charge is a continuing wrong and by virtue of Section 23, a fresh cause of action arose every day. Section 23 reads as follows:
“23. Continuing breaches and wrongs. – In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues.”
257. The contention of Mr S K Jain is that upon the order of attachment, the charge and management, along with property related rights of the Janmasthan temple have been taken over and are the subject matter of Suit 3. This, it is urged, constitutes a continuing wrong so long as they are not restored. In this context, reliance has been placed on the decision of the Privy Council in Sir Seth Hukum Chand v Maharaj Bahadur Singh163, in support of the submission that obstruction of prayer and worship is a continuing wrong. The submission is that the obstruction of the plaintiffs’ right to manage the bhog and prayers independently, as a result of the appointment of a receiver is a continuing wrong within the meaning of Section 23 and hence, every act of obstruction provides a fresh cause of action and a fresh starting point for limitation.
258. The decision in Hukum Chand, involved a contest between the Swetambari and Digambari Jain sects over the right of worship of Parasnath hill. The Swetambaris acquired the proprietary rights of the Raja of Palgunj in the hill by purchase. They commenced the construction of dwellings for watchmen on the top of the hill and for other temple employees, besides constructing dharamsalas. This was objected to by the Digambaris who instituted a suit against the Swetambaris claiming that the entire hill was sacred. There were Charans in the old shrines containing impressions of the footprints of saints, bearing a lotus mark. The Swetambaris evolved another form of Charan which was opposed by the Digambaris who refused to worship it as being a representation of a detached part of the human body. Both the lower courts held that the action of placing the Charans in the shrines was wrong in respect of which the Digambaris were entitled to complain. One of the questions which arose before the Privy Council was in regard to the finding of the Subordinate judge that the suit brought by the Digambaris was within limitation. In that context, Sir John Wallis delivering the judgment of the Privy Council held:
“As regards limitation the Subordinate Judge held on rather insufficient grounds that the acts complained of took place within six years of suit so that this part of the claim could not be barred by Article 120, but he also held that it could not be barred under that article as it was a continuing wrong, as to which under section 23 of the Limitation Act a fresh period begins to run at every moment of the day on which the wrong continues. The High Court on the other hand were of opinion that it was not a continuing wrong and that the claim was barred under article 120. In their Lordships’ opinion the Subordinate Judge was right in holding that the acts complained of were a continuing wrong and consequently that this part of the claim is not barred. This question is covered by the decision of this Board in Rajrup Koer v. Abul Hossein [(1880) I.L.R. 6 Cal. 394 : L.R. 7 I.A. 240.] , of diverting an artificial water course and cutting off the water- supply of the plaintiff’s lower lying lands.”
259. The above extract has been relied upon in support of the submission that a deprivation of the right to worship is a continuing wrong. Significantly, the Privy Council relied upon its earlier decision in Maharani Rajroop Koer v Syed Abul Hossein164 which involved an asserted right to an artificial water-course by cutting of the water supply of the lands belonging to the plaintiffs. In Maharani Rajroop Koer, the Privy Council held, speaking through Sir Montague E Smith, that obstructions which interfered with the flow of water to the plaintiff were in the nature of continuing nuisances:
“If the Judges really meant to apply the limitation of Article 34 above referred to, their decision is clearly wrong; for the obstructions which interfered with the flow of water to the Plaintiff’s mehal were in the nature of continuing nuisances, as to which the cause of action was renewed de die in diem so long as the obstructions causing such interference were allowed to continue. Indeed, sect. 24 of the statute contains express provision to that effect.”
260. The notion of what constitutes a continuing wrong has evolved through the decisions of this Court, depending on the factual context involved in each case. The decision of two judges in State of Bihar v Deokaran Nenshi165, dealt with the provisions of Sections 66 and 79 of the Mines Act 1952. Section 66 provides a penalty for an omission to file a return which may extend to Rs. 1000/-. However, Section 79 stipulates that no court shall take cognizance of any offence unless a complaint is filed within six months from the date of the alleged commission of offence or within six months from the date on which the alleged commission of offence came to the knowledge of the inspector, whichever is later. However, the explanation stipulates that if the offence is a continuing offence, the limitation shall be computed with reference to every point of time during which the offence continued. Under regulation 3, annual returns in the preceding year were required to be filed on or before the twenty-first day of January each year. Dealing with the question of limitation, this Court considered whether an offence involving a failure to file a return is covered by the substantive part of Section 79 (in which case the complaint was time barred) or by the explanation, involving a continuing offence. Justice J M Shelat, speaking for the Bench observed:
“5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues.”
The Court held that the infringement occurred upon the failure to file annual returns on or before January 21 of the relevant year and was complete on the owner failing to furnish the annual returns by that day. The Court held that the provision does not stipulate that the owner or manager would be guilty if he continues to carry on the mine without furnishing the returns or that the offence continues until the requirement of regulation 3 is complied with. In other words:
“9…As in the case of a construction of a wall in violation of a rule of a bye-law of a local body, the offence would be complete once and for all as soon as such construction is made, a default occurs in furnishing the returns by the prescribed date.”
261. Another decision of a two judge of this Court in Commissioner of Wealth Tax, Amritsar v Suresh Seth166, was based on the provisions of the Wealth Tax Act. Section 18(1)(a) provided for the levy of a penalty for failure to file a return of net-wealth without reasonable cause. The issue before this Court was whether the default in filing a return amounts to a continuing wrong. Justice E S Venkataramiah (as the learned Chief Justice then was) speaking for this Court held:
“11. A liability in law ordinarily arises out of an act of commission or an act of omission. When a person does an act, which law prohibits him from doing it and attaches a penalty for doing it, he is stated to have committed an act of commission which amounts to a wrong in the eye of law. Similarly, when a person omits to do an act which is required by law to be performed by him and attaches a penalty for such omission, he is said to have committed an act of omission which is also a wrong in the eye of law. Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or of omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed.”
This Court made a distinction between a continuing wrong and a wrong or default which is complete when it is committed in the following observations:
“11…The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default.”
Dealing with the provisions of the statute, this Court held that the default is only one which takes place on the expiry of the last date of filing a return and is not a continuing wrong. Consequently, the default does not give rise to a fresh cause of action every day. Indicating in the following passage illustrations of continuing wrongs, the Court held:
“17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well-being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem.”
In the view of this Court, non-performance of any of the acts mentioned in Section 18(1)(a) gives rise to a single breach and to a single penalty, the measure of which however relates to the time lag between the last date on which the return has to be filed and the date on which it is actually filed.
262. The provisions of another revenue statute, the Income Tax Act 1961 came up for consideration before a three judge Bench of this Court in Maya Rani Punj v CIT167. In this case, Section 271(1)(a) of the Income Tax Act 1961 entailed imposing a penalty for filing late returns. The penalty was imposable not only for the first default but as long as the default continued. The assessee filed its return more than seven months after the due date. The three judge Bench disapproved of the decision in Suresh Seth. Justice Sabyasachi Mukherji (as the learned Chief Justice then was) held that the default continued so long as a return was not filed and was hence a continuing wrong:
“19. The imposition of penalty not confined to the first default but with reference to the continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default continued. Without sanction of law no penalty is imposable with reference to the defaulting conduct. The position that penalty is imposable not only for the first default but as long as the default continues and such penalty is to be calculated at a prescribed rate on monthly basis is indicative of the legislative intention in unmistakable terms that as long as the assessee does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law.”
263. The application of the principle of continuing wrong in the context of service jurisprudence came up before a two judge Bench of this Court in Union of India v Tarsem Singh168. In that case, the respondent was invalidated out of the Indian Army on medical grounds in November 1983. He approached the High Court in 1999 seeking disability pension. The High Court issued a mandamus for the payment of disability pension but restricted it to a period of 38 months prior to the institution of the writ petition. The claim of the respondent however was that disability pension should be granted with effect from November 1983 which was allowed by the Division Bench of the High Court in a Letters Patent Appeal. In a challenge before this Court to the above decision of the Division Bench of the High Court, Justice R V Raveendran, speaking for the two judge Bench, observed that to the principle that a belated service claim is liable to be rejected on the ground of delay and laches, there is a settled exception in relation to a continuing wrong. However, there is a further exception to the exception where the grievance is in respect of a decision which is liable to affect others in the service prejudicially. This Court held:
“7. To summarise, normally, a belated service-related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service-related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply.”
The High Court in appeal was held not to be justified in directing the payment of arrears for the payment beyond three years before the institution of the writ petition.
264. Many of the above judgments have adverted to a three judge Bench decision in Balakrishna Savalram Pujari Waghmare v Shree Dhyaneshwar Maharaj Sansthan169. The appellants claimed rights of hereditary worshippers in a religious institution and that their ancestors were in possession of a temple and in the management of its affairs including the worship of a shrine. The trustees dismissed some pujaris for misconduct. Meantime, in 1922, the pujaris obtained forcible possession of the temple. The trustees instituted a suit which resulted in a decree. Possession of the temple was recovered in execution of the decree. Later, the pujaris instituted a suit claiming hereditary rights under the religious institution. In an appeal arising from the decree in the suit, the High Court held that Article 120 of the Limitation Act applied, and the suit had been initiated beyond the period of six years prescribed by the article. In appeal before this Court, it was urged that the suit was not barred under Article 120 because Section 23 of the Limitation Act applied, the conduct of the trustees being a continuing wrong. While considering the argument, Justice PB Gajendragadkar (as the learned Chief Justice then was) held:
“31… In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.”
265. This Court held that the act of the trustees in discontinuing the alleged rights of the appellants as hereditary worshippers and in claiming and obtaining possession from them in the suit in 1922 could not held to be a continuing wrong.
The Court held that the decree obtained by the trustees, had effectively and completely injured the rights of the appellants though the damage may have subsequently continued. Upon the execution of the decree, the rights of the appellants were completely injured and though their dispossession continued, it was held not to constitute a continuing wrong. In that context, the Court noted:
“We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of Section 23 in such a case. That is the view which the High Court has taken and we see no reason to differ from it.”
This Court distinguished the decision of the Privy Council in Maharani Rajroop Koer v Syed Abul Hossein170 on the ground that it was a case where a continuing obstruction caused to the flow of water was held to be in the nature of continuing nuisances. Similarly, the decision in Sir Seth Hukum Chand v Maharaj Bahadur Singh171 relied on the earlier decision in Maharani Rajroop Koer. Distinguishing the decision, this Court held that the action which was impugned did not amount to ouster or complete dispossession of the plaintiffs.
266. A continuing wrong, as this Court held in Balakrishna Savalram is an act which creates a continuing source of injury. This makes the doer of the act liable for the continuance of the injury. However, where a wrongful act amounts to an ouster, as in the present case, the resulting injury is complete on the date of the ouster itself. A wrong or default as a result of which the injury is complete is not a continuing wrong or default even though its effect continues to be felt despite its completion.
267. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, where positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. This indeed was the basis on which the three judge Bench in Maya Rani Punj approved the statement in a decision of the Calcutta High Court in the following terms:
“In G.D. Bhattar v. State [AIR 1957 Cal 483 : 61 CWN 660 : 1957 Cri LJ 834] it was pointed out that a continuing offence or a continuing wrong is after all a continuing breach of the duty which itself is continuing. If a duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong.”
Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may enure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.
268. In the present case, there are several difficulties in accepting the submission of Nirmohi Akhara that there was a continuing wrong. First and foremost, the purpose and object of the order of the Magistrate under Section 145 is to prevent a breach of peace by securing possession, as the Magistrate finds, on the date of the order. The Magistrate does not adjudicate upon rights nor does the proceeding culminate into a decision on a question of title. The order of the Magistrate is subordinate to the decree or order of a civil court. Hence, to postulate that the order of the Magistrate would give rise to a wrong and consequently to a continuing wrong is inherently fallacious. Secondly, would the surreptitious installation of the idols on the night between 22 and 23 December 1949 create a right in favour of Nirmohi Akhara? Nirmohi Akhara denies the incident completely. The right which Nirmohi Akhara has to assert cannot be founded on such basis and if there is no right, there can be no corresponding wrong which can furnish the foundation of a continuing wrong. There was no right inhering in Nirmohi Akhara which was disturbed by the order of the Magistrate. The claim of Nirmohi Akhara was in the capacity of a shebait to secure management and charge of the inner courtyard. Nirmohi Akhara has itself pleaded that the cause of action for the suit arose on 5 January 1950. Proceeding on the basis of this assertion, it is evident that the ouster which the Akhara asserts from its role as a shebait had taken place and hence, there was no question of the principle of continuing wrong being attracted.
269. The decision of the Madras High Court in Ellappa Naicken v K Lakshmana Naicken172 is of no assistance to the Nirmohi Akhara. That was a case where during the pendency of the proceedings under Section 145, the Magistrate had passed an order under Section 146 for the appointment of a receiver as the court was unable to satisfy itself as to which of the parties was in possession. The respondents had filed a suit for a declaration of title and possession which was dismissed in default and an application to set aside the order under Order IX of Rule 9 of the CPC was also dismissed. An appeal from the order was also dismissed. Thereafter the petitioner who was the defendant applied for possession before the Magistrate after the dismissal of the suit on the ground that the District Munsif had determined his rights. The Magistrate passed an order holding that there was no declaration by a civil court as to who was entitled to the suit premises and therefore the land would continue in the possession of the receiver. It is in that context, that the learned Judge held that either party to a decision under Section 146 has to file a suit for declaration of title within the period of limitation or to bring a suit for the recovery of the profits of the land. In such a suit, the question as to who is entitled to the profits will be decided with the result that the question of title would also to be adjudicated. This would operate as res judicata for the purpose of Section 146. These observations were made by the learned Single Judge of the Madras High Court in support of the ruling that it was not as if parties were without remedy, resulting in the property remaining custodia legis for all time. Either party was entitled to bring a suit for recovery of profits within limitation where the question of title would be adjudicated. This decision is of no assistance to the Nirmohi Akhara. Certain decisions have been relied upon by Nirmohi Akhara but these are in regard to the commencement of limitation for the enforcement of a decree by execution. In Chandi Prasad v Jagdish Prasad173, a two judge Bench of this Court held that an appeal under the statute is a continuation of the suit for all intents and purposes. Hence, when a higher forum entertains an appeal and passes an order on merit, the doctrine of merger applies and there is a merger of the decree of the trial court with the order of the appellate court. Hence, once a decree is sought to be enforced for the purpose of execution, irrespective of being original or appellate, the date of the decree or any subsequent order directing payment of money or delivery of property at a certain date would be considered to be the commencement of limitation. The same principle has been emphasized by a three judge Bench in Union of India v West Coast Paper Mills Ltd.174 and in Shanti v T D Vishwanathan175. The essential issue is whether their suit was within limitation and for the reasons which have been indicated, the answer to that must be in the negative.
M.5 Oral testimony of the Nirmohi witnesses
270. Having held that Suit 3 instituted by Nirmohi Akhara is barred by limitation, it does not strictly speaking become necessary for this Court to deal with the evidence, oral and documentary. Mr Parasaran urged, that unlike the Trial Court, this Court is not required to answer all the questions which arise in the first appeal and if limitation alone concludes the issue it is unnecessary to deal with all the issues in contest. The Trial Court, it was urged, has to deal with all issues since its decision is subject to appeal. Having carefully evaluated this submission, it is appropriate to scrutinize the evidence adduced by Nirmohi Akhara and to render a full adjudication, having regard to the nature of the controversy. The evidence recorded in all the suits has been relied upon during the hearing of the appeals. Hence it becomes necessary to advert to the oral evidence. Nirmohi Akhara has relied on the oral evidence of the following witnesses during the course of the hearing:
271. Mahant Bhaskar Das (DW 3/1): The date of the Examination-in-Chief of the witness is 29 August 2003. He was 75 years of age on the date of the deposition and claimed to be a disciple of Baba Baldeo Das. He was the Sarpanch of Shri Manch Ramanandiya Nirmohi Akhara and prior to it claimed to be a Panch and pujari of the Ram Janmabhumi temple. The witness stated that:
(i) Nirmohi Akhara is the owner of the idols, the disputed temple, Ram Janmabhumi and other temples in the vicinity for several hundred years;
(ii) The consecration of Lord Ram seated in Ram Janmabhumi temple and Ramchabutra was performed by a Mahant of Nirmohi Akhara;
(iii) This information was passed down to disciples from their old preceptors from generation to generation;
(iv) That he was performing worship and aarti in the Ramchabutra temple from 1946-1949;
(v) Both the inner and outer courtyards have always been in the possession of Nirmohi Akhara, there was a sanctum sanctorum in the inner part of which the attachment was made;
(vi) The entire outer part was in possession of Nirmohi Akhara since time immemorial;
(vii) No incident took place during the night of 22/23 December 1949, when he was asleep below the northern dome of the disputed structure;
(viii) Aarti and worship of Lord Ram was being conducted in the sanctum sanctorum even prior to 29 December 1949 and the inner temple was attached on 19 December 1949;
(ix) After the riot of 1934, no Muslim had visited the disputed site to offer namaz;
(x) No idol was taken from Ramchabutra temple on 22/23 December 1949 and the possession of the disputed temple had all along been with Nirmohi Akhara;
(xi) The servicing rights in respect of the main temple had been with Nirmohi Akhara until 29 December 1949. Nirmohi Akhara had been performing worship of Lord Ram and other idols in the outer premises till the second attachment in February 1982; and
(xii) Lord Ram was seated in the inner part even prior to 1934, which was in continuous possession of Nirmohi Akhara since then.
Dr Dhavan, learned Senior Counsel appearing on behalf of the Sunni Central Waqf Board, has pointed out the following contradictions in the evidence of the witness:
(i) While the witness stated that there was no incident on 22/23 December 1949, and that he was sleeping below the northern dome of the disputed structure, the High Court has recorded the statement of Counsel for Nirmohi Akhara to the effect that the idols were shifted from Ramchabutra and kept under the central dome of the disputed building; and
(ii) The witness initially stated that there were two idols of Ram Lalla in the disputed building; one on the throne and one on the stairs but he subsequently clarified that by two idols he meant one of Ram Lalla and another of Lakshman. Moreover, the witness claims that he had himself performed Aarti of Lord Ram inside the disputed site prior to its attachment on 29 December 1949 in spite of which he was not able to make any statement in regard to the number of idols inside the disputed structure. Moreover, while on the one hand, the witness stated that the parikrama was at the back of the disputed structure later on he stated that parikrama was being performed around Ramchabutra.
272. The testimony of the witness on certain other aspects also merits scrutiny.
The witness stated that Babri Masjid was built in 1528 by demolishing the Ram Janmabhumi temple. Then he stated that:
“Since the buildings built by Vikramaditya were 2500 years old, they collapsed on their own and the Janmbhumi temple was demolished in the year 1528. The building which was demolished in the year 1528, was originally built by Vikramaditya.”
The witness stated that the building of a Ram Janmabhumi temple by Vikramaditya and the construction of the disputed structure in 1528 upon the demolition of the temple was what he heard from his ancestors and was not read by him anywhere. According to the witness, worship in the mosque had been continuing by the Hindus before 1934. According to him, the idols had been installed prior to 1934 but he was unaware by whom they were installed. The witness then stated:
“I had heard it from my ancestors that the idols existed over there from before the year 1934. I will also not be able to tell how many years after the construction of the three domed disputed structure i.e. after the year 1528, were the idols installed in the disputed structure.”
According to the witness, in 1946, the gates of the grill-brick wall were opened for devotees and the temple used to remain open. He stated that namaz was not offered in the disputed structure till December 1949. As regards the incident on 22/23 December 1949, the witness has the following explanation:
“No incident occurred in the disputed structure in the night of 22/23 December, 1949. If somebody claims that some incidents occurred in the disputed structure in the night of 22/23 December, 1949, then he is stating wrongly. In the night of 22/23 December, 1949 I was present in the disputed premises. I go to bed at 11.30 PM and get up at 4.30 AM. I must have slept so in that night i.e. in the night of 22/23 December, 1949. At that time i.e. in that night, I had slept at the place beneath the dome.”
The ignorance which the witness feigns of the incident is evident. The deposition of the witness assumes importance because he was the Panch of Nirmohi Akhara since 1950 and was at the material time the Sarpanch. His evidence has several contradictions. He stated:
“This throne existed in the disputed structure from before the year 1950. This throne was present in the disputed structure, from ten years before the year 1950. This throne was in the disputed structure in the year 1950, but it had not been attached.”
On the other hand, the witness stated:
“Before 1986, the throne, visible in these photographs, did not exist at the disputed site. This throne may have been placed in the disputed building after its lock was opened in 1986.”
The witness then admitted that he had referred to two idols of Lord Ram when there was only one idol of Lord Ram and one of Lakshman. As regards the idols at Ramchabutra, the witness stated that they were installed during Akbar’s reign. While on the one hand, the witness stated that namaz had never been offered in the mosque since the days of Babur, on the other hand, when he deposed about the idol of Ram Lalla in the disputed structure, he stated that it was prior to 1934 but the exact date and period was not known to him. According to the witness, the idol of Ram Lalla seated on the throne was a chal – vigrah or moveable idol.
Much of the evidence of the witness is hearsay in nature. His statements are based on what has been communicated to him by others. The explanation of the witness that he was asleep in the disputed premises on 22/23 December 1949 and that no incident had taken place is a figment of his imagination. The statement that the idols of Ram Lalla have been placed in the disputed structure much prior to 1934 is unworthy of credence.
273. Raja Ram Pandey (DW 3/2): The date of the Examination-in-Chief of the witness is 22 September 2003. The witness stated that he was 87 years old at the time of deposition and that he had come to Ayodhya in 1930 since when he claimed to have been visited the Ram Janmabhumi temple. The witness stated that:
(i) He had seen the Nirmohi Akhara Aarti prior to the attachment of the inner courtyard;
(ii) The duty of opening and closing the gates of the outer courtyard was performed by Nirmohi Akhara;
(iii) No Muslims were allowed to enter from the outer gate between 1930-1949 and he was able to view the inner part of the sanctum sanctorum where some idols had been engraved; and
(iv) Ever since his arrival until the date of attachment, the premises have never been used as a mosque.
Dr Dhavan has during the course of his submissions emphasized the following aspects of the cross-examination:
(i) The witness has accepted that earlier the Chabutra was known as Janmabhumi temple;
(ii) The witness was unaware as to when the disputed structure with three domes was built and who had got it built; he had no knowledge as to when and who had installed the idols inside the disputed structure; and
(iii) The witness was unaware as to when and by whom Nirmohi Akhara was made the owner of Ram Janmabhumi temple.
The witness stated during the course of his examination that he was hearing of the Babri mosque since 1949 but he was unaware where in Ayodhya it is or was situated. He stated that he came to know later from the cross-examination that the building which he called the Ram Janmabhumi temple is called the Babri mosque by Muslims. Though, he stated he had held meetings with Muslims in 1992-93, he stated he was not informed by any of them that the mosque has been demolished on 6 December 1992. On his own ability to recall events, the witness stated:
“I have grown 87 years old and my discretion does not work in a proper manner. For this reason, I fail to remember which particular thing I stated at a particular time. Of the aforesaid statements, the above mentioned statement given by me today is correct; I have wrongly given the statement dated 30.09.2003.”
The witness deposed that he had no knowledge of who had installed the idols in the three domed disputed structure but claimed to have been seeing them ever since he was visiting it. While on the one hand, the witness admitted to the weakness of his memory, he purported to depose to what had taken place in 1930, 73 years earlier when he visited the disputed structure for darshan. According to him, his father had stated that the pillars contained images of Lord Hanuman.
274. Satya Narain Tripathi (DW 3/3): The Examination-in-Chief of the witness was on 30 October 2003 when he was 72 years old. The witness stated that he had first visited the Ram Janmabhumi temple in 1941 when he was ten years old and had been continuously visiting since then. The witness stated that no namaz was offered at the disputed site nor had any Muslims offered prayer. Though, the witness stated that he has been continuously visiting the disputed structure, when asked about the physical features, he stated that he never saw any part of the disputed structure with much attention.
The witness expressed ignorance about whether certain individuals had entered the mosque and placed idols on the night of 23 December 1949. The High Court has noted that most of the statements of this witness are on assumption and hearsay. While on the one hand, he referred to the idols which were placed on the sinhasan in the disputed structure which remained there from 1941-1992, he later retracted the statement when shown the photographs and stated that it was not clear to him when he used to visit and in what manner the idols were kept.
275. Mahant Shiv Saran Das (DW 3/4): The witness was examined on 14 November 2003. He was 83 years old. He stated that he had been going for darshan to Shri Ram Janmabhumi since 1933 and had darshan of Lord Ram inside the sanctum sanctorum until attachment in 1949.
Dr Dhavan, learned Senior Counsel appearing for the Sunni Central Waqf Board, has emphasized the following aspects of the testimony of this witness:
(i) The witness submitted that he had read his affidavit of evidence only cursorily and had not read it completely;
(ii) Though the witness stated that when he visited the disputed site in 1936, there were no walls or iron-bars, it is relevant to note that grill-brick wall was placed in 1856-57 to separate the inner and the outer courtyards; and
(iii) Though, in the course of his Examination-in-Chief, the witness stated that he had taken darshan of the inner sanctum sanctorum until its attachment in 1949, during his cross-examination he stated that he had not visited the disputed building before 1986. On the above basis, it is urged that as a matter of fact, the witness has not visited the disputed site at the material time.
On his residence in Ayodhya, the witness stated:
“I did not reside at Ayodhya from 1938 to 1950 but whenever I came to Ayodhya I did not go towards the disputed site and if I at all went there I returned from outside after saluting the place with folded hands.”
The witness stated that he was a priest at the disputed structure which he must have visited several hundred times. However, he did not remember the year in which he was a priest. During the course of his cross-examination, the witness stated that he was a priest at the three domed structure for “2-4 years” but later admitted that his statement was wrong:
“Question: As per the aforesaid statement of your own, you have been at Ayodhya continuously for only 5-6 months between 1931 and 1957. Is it true?
Answer: Yes, Sir. It is true.
Question: Then I have to say that your statement dated 5th February, 2004 – mentioned on page 74 and reading as ‘You served as a priest at the three domed disputed building for 2- 4 years’ – goes wrong. What have you to say in this respect? Answer: Going through the aforesaid the witness stated – this statement of mine has gone wrong.”
Later, he admitted that his statement in the Examination-in-Chief that he was going for darshan to the Ram Janmabhumi since 1933 contained a wrong reference to the year. Moreover, the witness accepted that he did not remember whether or not he had visited the disputed building before February 1986. The witness also stated that he had wrongly made a reference to his residing in Ayodhya continuously from 1930-42.
276. Raghunath Prasad Pandey (DW 3/5): The Examination-in-Chief of the witness is dated 18 November 2003. The witness was 73 years old when he deposed. According to him, the Ram Janmabhumi temple is about 16 or 17 kilometres from his village and he has visited it since the age of 7.
277. The following aspects of the cross-examination have been emphasized by Dr Dhavan:
(i) The witness had no knowledge of whether the pictures were of the west side wall or the lower portion of the middle dome of the disputed building because he had gone for darshan and had not paid careful attention to the walls;
(ii) Though, he had seen the grill-brick wall, he did not remember if one had to pass through the barricades to enter the disputed structure; and
(iii) Though the witness claimed to have visited Ayodhya with his mother from 1937-1948, and that the idols of Lord Ram Lalla were inside the building under the central dome, he subsequently contradicted himself when confronted with various photographs.
The High Court has noted that most of his statements travelled into antiquity and were inadmissible since he had no personal knowledge of the facts. When questioned about the source of his knowledge, he stated that he had heard stories from his teachers. Initially, the witness stated that the three domed structure was constructed by Vikramaditya. He then stated that the building constructed by Vikramaditya was demolished and the disputed building was constructed. Though, he attributed this information to the Ayodhya Mahatmya, counsel for Nirmohi Akhara conceded before the High Court that the document does not mention that the building was constructed by Vikramaditya and was demolished after which the disputed structure was constructed. Though, the witness had served in the Indian Railways from 1948-1988, he claimed to have heard the name of Babri mosque for the first time on 18 November 2003.
278. Sri Sita Ram Yadav (DW 3/6): The date of the Examination-in-Chief of the witness is 6 January 2004. The witness stated that he was born in 1943 and that he attained the age of understanding in 1951 when he was 8 years of age. The statements of this witness were therefore not relevant to the controversy since his factual knowledge pertains to the period after 1951. This witness was born in 1943 and had no personal knowledge of the facts up to December 1949. The evidence of the witness was hearsay in nature.
279. Mahant Ramji Das (DW 3/7): The following aspects of the testimony have been emphasized by Dr Dhavan:
(i) The witness accepted that the disputed building was built by Emperor Babur but he stated that it was constructed as Sita Pak but not as a mosque, which is contrary to the stand of Nirmohi Akhara in its written statement;
(ii) According to the witness, the disputed temple was constructed after the demolition of Janmasthan Mandir by Emperor Babur by way of Goodar Baba (which is not the pleaded case of any of the Hindu Parties); and
(iii) Babur got ‘Sita Pak’ written on the disputed building because he was unable to construct the mosque because Hanumanji would demolish the structure whenever an attempt was made to build a mosque.
As to his own personal knowledge, the witness stated:
“I cannot definitely tell as to on how many occasions had I gone to Ayodhya between the years 1934 to 1948. I do not remember as to what was my age, when I visited Ayodhya between the years 1934 to 1948. When I had gone along with my father. I do not remember as to when did I first go to Ayodhya after the year 1934, but when I first went to Ayodhya after the year 1934, I stayed for 3-4 days.”
Contrary to the stand of the Nirmohi Akhara, he stated that the disputed structure was built by Babur, though in the shape of Sita Pak:
“The disputed structure, which was demolished on 6th December, 1992, was built by Babar in the shape of ‘Sita Pak’, (and) not in shape of mosque… In the period of Akbar, Muslims had the permission to offer Jumma namaz in the disputed structure and for the remaining period, Hindus were permitted to carry out prayer-worship. It is not found in literature or history as to whether in the period between Babar to Akbar, namaz was offered by Muslims in the disputed structure or not, or whether the prayer-worship of Lord Rama was carried out or not. To the best of my knowledge and as told to me, namaz was never offered in the disputed structure after the riot of the year 1934 and instead prayer-worship was regularly carried out over there in the later days. As per my knowledge, which is based on hearsay, the Jumma namaz was offered at the disputed structure from the times of Akbar till the year 1934. Namaz was not offered on other days.”
Eventually, the witness stated that he had not read his affidavit by way of Examination-in-Chief at the time of signing it and had read it in the court room.
280. Pt Shyam Sundar Mishra (DW 3/8): He was born in 1914 and stated that Ram Janmabhumi is situated at a distance of less than 400 yards from his house. He was 90 years old at the time of deposing.
281. The following aspects of the testimony of the witness have been emphasised by Dr Dhavan:
(i) The statement of the witness that the central dome is swayambhu is against the pleaded case of Nirmohi Akhara;
(ii) According to the witness, in 1992 the dome of the janmasthan temple came down due to its antiquity and due to lack of proper maintenance; and
(iii) While deposing, the witness seems to distinguish between Ramchabutra temple and the “three dome temple” and stated that it was the Ramchabutra temple which was in the ownership of Nirmohi Akhara and remained silent about the management and ownership of the “three domed temple”.
The witness stated that he had no knowledge about the observance or non- observance of worship at the disputed site before he attained the age of 14 years.
282. Sri Ram Ashrey Yadav (DW 3/9): The Examination-in-Chief of the witness was recorded on 22 March 2004 when he was 72 years of age. He claims to reside in close proximity to the Ram Janmabhumi temple.
283. Dr Dhavan has submitted that this witness is completely unaware of what is stated in his Examination-in-Chief, which needs to be completely disregarded for the following reasons:
(i) In the course of his cross-examination, the witness admitted that while he had no knowledge of what was written in his affidavit, he cannot recollect what exactly was written though it was read out to him;
(ii) The answers which he has furnished maybe right or wrong and that his memory had been affected;
(iii) He was unaware whether the main affidavit was typed in Faizabad or Lucknow;
(iv) He had visited the sanctum sanctorum for darshan even before 22/23 December 1949 and the statement that an idol was placed on those dates was untrue; and
(v) The witness was unaware whether the dates 22/23 December pertained to the year 1949 or not.
Though, the affidavit was prepared merely ten months earlier, the witness was unable to recollect anything from the document. He was unaware of the history of Nirmohi Akhara and had no knowledge whether the disputed shrine was attached. This witness stated that he was unaware of the contents of his affidavit by way of Examination-in-Chief:
“Today, I have filed an affidavit in this Court. I was not able to read on my own as to what was written in the affidavit filed by me. This affidavit was read out to me by the ‘Munshi’ (advocate clerk), but I do not remember his name. I had only put my signature on the affidavit after hearing the same, but I do not know about its contents. This affidavit ran into three or four pages.”
Later, he stated that his mind was not functioning properly for eight to ten months and his memory had become weak. He stated:
“I do not recollect whether the facts mentioned in this paragraph, had been got incorporated by me or not. … In second and third line of this paragraph, I have mentioned that ‘the placement of idols in the ‘Garbh-grih’ portion on 22-23 December, is totally wrong’. I do not remember whether this fact is related to the incident of 1949 or not. In this very paragraph, I have also mentioned that ‘few local Muslims. … got the forged action taken’. I do not recollect as to in which behalf, was this forged action. Stated on his own that I cannot tell whether the forged action mentioned by me was related to the incident of year 1934 or not.”
284. Sri Pateshwari Dutt Pandey (DW 3/10): The Examination-in-Chief of the witness is dated 23 March 2004. The witness who was 74 years of age stated that he was the local commissioner who performed a site survey in relation to another case (Nirmohi Akhara v Ram Lakhan Sharan Das – Suit 9 of 1973).
Dr Dhavan has adverted to the following points in regard to the testimony to the witness:
(i) Though, his report marks the existence of a Mandir at the disputed site, he accepted that the word ‘Mandir’ had been inserted by him at the behest of certain other persons. He did not know whether the place was Babri Masjid or otherwise and stated that he had written what was informed to him by others; and
(ii) Consequently, the report of the witness cannot be relied upon to establish that the disputed structure was a temple as he marked it as a temple only on the suggestion of others.
These admissions of the witness cast serious doubt on his credibility.
285. Sri Bhanu Pratap Singh (DW 3/11): The Examination-in-Chief of this witness was recorded on 28 April 2004 when he was 70 years of age. He claimed to be visiting the Ram Janmabhumi temple since the age of 10. The witness stated that his memory is weak. He was unable to state whether any other temple apart from the Ram Janmabhumi temple is related to Nirmohi Akhara. When confronted with his Examination-in-Chief, he stated:
“The portion ‘temples all around’ of my above statement, is wrong because temples were only on two sides… In this behalf, I cannot give any reason for making wrong statement. I forget few facts due to which such statements are made. By forgetting, I mean that I do not remember those facts at that time.”
286. Sri Ram Akshaibar Pandey (DW 3/12): The Examination-in-Chief was recorded on 25 May 2004. The witness who was 70 years of age stated that he was visiting the Ram Janmabhumi temple since the age of 12.
The following aspects of the testimony of the witness are significant:
(i) The witness admitted that his information about the disputed structure had been gathered from his grandfather;
(ii) Though, in his Examination-in-Chief, he stated that he used to do the parikrama, in the course of his cross-examination, he stated that he had never seen the three domes from behind the structure;
(iii) The witness stated that he had not performed the parikrama of the Ram Janmabhumi but of Ramchabutra;
(iv) According to the witness, he was informed by the villagers that the Ram Janmabhumi in which Ram Lalla was present had collapsed as it was old; and
(v) The witness stated that he neither read nor heard about who had constructed the disputed structure with three domes. The witness eventually accepted the weakness of his own memory rendering him unreliable.
287. Mahant Ram Subhag Shashtri (DW 3/13): The Examination-in-Chief was recorded on 25 May 2004. The witness was 86 years of age and stated that he had come to Ayodhya in 1933 and his guru was connected to Nirmohi Akhara. The following aspects of the testimony of witness are relevant:
(i) The witness stated that there was a disturbance on the night of 22/23 December 1949 in the disputed structure and though he was not aware about the arrangements which were made on that night, it transpired that new idols were installed;
(ii) As regards the construction of the mosque, the witness stated:
“Babar had built the mosque by demolishing the structure of temple, but he was unable to make it a mosque completely.
14 pillars were fixed in this structure, which had idols engraved over them, and as such it became a place of idol.”
(iii) The witness stated that possibly facts pertaining to the period after 1933- 34 had vanished from his memory. The statement of the witness that the idols were installed in the disputed structure on the night of 22/23 December 1949 is contrary to the case of Nirmohi Akhara. According to Nirmohi Akhara, there never existed any mosque at the disputed site and all along there was a temple which was in its management, and that no incident had taken place on 22/23 December 1949.
288. Jagad Guru Ramanandacharya Swami Haryacharya (DW 3/14): The Examination-in-Chief was recorded on 23 July 2004 when the witness was 69 years old. He was the head of Ramanand Sampradaya since 1985-86. He came to Ayodhya in 1949 at the age of 10. According to him, he had seen the idol of Ram Lalla inside the disputed structure under the central dome as well as outside at Ramchabutra. The witness deposed when he first had darshan from a distance of 15 feet, it was not from under the dome but from the courtyard. The witness had no information whether namaz was offered in the disputed structure before he came to Ayodhya. The witness did not rule out the possibility that the idols were placed inside the disputed structure in 1949, when he stated:
“It is possible that in the dispute that occurred in 1949 and in the incident in which idol had been placed in the disputed building, the local Hindus of Ayodhya had no role; rather, outsider ascetic saints were responsible for the same.”
289. Narendra Bahadur Singh (DW 3/15): The Examination-in-Chief was recorded on 17 August 2004. The witness was 72 years of age. According to him, when he was 11 years old, he went to Ram Janmabhumi with his parents and saw the idol of Ram Lalla seated under the central dome. He claimed that since the age of 15, he was going alone to the temple until demolition.
Dr Dhavan has adverted to the following points in regard to the testimony of the witness:
(i) The witness needs to be completely disregarded for having furnished varied time periods of when he commenced visiting the disputed site. Though, he stated in his Examination-in-Chief that he first visited at the age of 11, in his cross-examination, he stated that he had seen the Nirmohis managing the disputed structure since the age of 5-6 years and 8-9 years;
(ii) Regarding his statement that he had never seen any namaz at the disputed site, he stated that he was not there at the site and hence could not see whether namaz was being conducted; and
(iii) The witness denied the existence of the Janmasthan Mandir on the north side which has been accepted by Nirmohi Akhara in its replication.
290. Shiv Bhikh Singh (DW 3/16): The witness was 79 years of age on the date on which his affidavit, by way of Examination-in-Chief, dated 24 August 2004 was sworn. He claimed that he had been visiting Ram Janmabhumi temple since the age of 12 and had seen the idol of Lord Ram under the central dome. The witness stated that the idol of Ram Lalla was situated in the Ram Janmabhumi temple and there were three caves. He denied that the idols were placed in the disputed structure on 23 December 1949. According to him, the idols existed at the disputed structure even before his forefathers. The witness spoke about darshan in the three domed structure where the idol existed but stated that circumambulation was performed inside the grill-brick wall. According to him there was no place called Sita Rasoi in the disputed premises. The witness also stated that when he had first gone to the three domed structure, he had not been exactly under the central dome and that he had taken darshan from the gate in the front of the lower side of the dome.
291. Sri Mata Badal Tewari (DW 3/17): The witness was 84 years of age on the date of his Examination-in-Chief dated 31 August 2004. He claimed that he had visited the Ram Janmabhumi temple for the first time in 1935 at the age of 15 and has visited Ayodhya since then. The witness had no knowledge about the Babri Masjid at Ayodhya or where it is situated. He however stated that he heard of the mosque. The lack of awareness of this witness about the mosque is contradicted by his account of the riots of 1934:
“I have mentioned about the riot of Ayodhya. This riot occurred in the year 1934. Some part of the disputed structure had been damaged at that time. Those domes were damaged by many people. The damagers were followers of Hindu religion.”
If, according to the witness, the persons who damaged the domes in 1934 were Hindus by religion, it is impossible to accept his lack of awareness about the existence of the mosque.
292. Sri Acharya Mahant Bansidhar Das (DW 3/18): The witness who was born in 1905, stated that he had come to Ayodhya in 1930. He was 99 years of age on the date of his Examination-in-Chief on 15 September 2004. He stated that he was continuously visiting the disputed structure and worshipping idols in the inner courtyard. The following aspects of the testimony of this witness need to be noted:
(i) The witness deposed that Ramchabutra is also called Bedi and the word can be used for a small or large Chabutra;
(ii) The witness stated that there is no harm in telling a lie if there is a religious place and if someone is acquiring it through wrong means or forcibly occupying it;
(iii) The witness admitted that his memory was not good due to age;
(iv) The witness had given testimony in about two hundred suits. The witness had varied theories about the construction of the temple contrary to the pleaded case of the litigating Hindu parties:
(a) According to him, the repairs of the Ram Janmabhumi was carried by Nirmohi Akhara during the last 700 years;
(b) The temple of Kasauti black stones was constructed by Nirmohi Akhara;
(c) The temple said to be made during the time of Vikramaditya was constructed by the King of Kannuz and not by the King of Ayodhya;
(d) Mir Baki destroyed the Ram temple but did not construct the Masjid, the temple was reconstructed by Govind Das who was the Mahant of Nirmohi Akhara during the regime of Babur;
(e) Govind Das Ji constructed the building with three domes;
(f) Some part of the temple was constructed during the regime of Babur which was destroyed during the regime of Humayun but was reconstructed by Govind Das Ji; and
(g) Anantananda, disciple of Ramanand, reconstructed the temple at the disputed site.
293. Sri Ram Milan Singh (DW 3/19): The witness was 75 years of age on 17 August 2004 when his Examination-in-Chief was recorded. He sought to prove the existence of idols under the central dome in the inner courtyard and on the Ramchabutra, stating that he had been visiting since 1940 till 1951 and occasionally after 1952. When questioned about his affidavit, he stated:
“The person having prepared this affidavit, can only tell about this. I had not completely read the affidavit of examination-in- chief before signing it… I had put my signature on the affidavit at the High Court, Lucknow. I cannot tell whether this affidavit had been typed out at Lucknow or not. At the time when the draft of this affidavit of mine had been prepared, I was at the place of my counsel in Ayodhya. He had told that ‘I am preparing the draft of your affidavit’. I had not seen the contents of the draft of the affidavit, after it was prepared.”
The above admission renders his evidence untrustworthy and not deserving of credence.
294. Mahant Raja Ramchanbdr-Acharya (DW 3/20): The witness was 76 years old on the date of the Examination-in-Chief on 27 October 2004. He was a pupil of Mahant Raghunath Das, the second plaintiff in Suit 3. The witness stated that in 1943, when he first came to Ayodhya, the Babri Masjid did not exist and that the disputed building is not a mosque:
“In 1943, when I first came to Ayodhya, the Babri mosque was not at all existing there. There was no mosque on the disputed site in 1943, because there used to be worship of idols over there. I have heard the name of the Babri mosque. The disputed building is the Babri mosque. (Again stated) It is not the Babri mosque; it is a temple. The disputed building has three domes. It is not a mosque. It is the birthplace of Lord Rama. In 1943, when I first visited Ayodhya I did not see the Babri mosque at all. I never saw namaz being offered in the disputed building. I have seen Pooja being performed there. (Stated on his own) No question arises of offering namaz at a place where Pooja is performed. In 1943, when I first visited Ayodhya, I saw a temple, not a mosque, on the disputed site. (Stated on his own) There used to be Pooja- Sewa (offering worship and rendering service) over there. Three domes were built in the disputed building.”
According to the witness, namaz was not offered at the disputed building from 1943 to 1950 and puja was being performed; and the sanctum sanctorum was situated beneath the three domed structure of the disputed building.
295. The above account of the oral evidence of the witnesses who deposed in support of the Nirmohi Akhara indicates that their statements are replete with hearsay. Witnesses who claimed to have visited the disputed site on numerous occasions were unable to record its physical features. Though, the witnesses have purported to state that no incident had taken place on 22/23 December 1949 and one of them feigned ignorance on the ground that he was sleeping inside the disputed structure at the time, it is impossible to accept this as a credible or trustworthy account. The statements of the witnesses are replete with inconsistencies and contradictions. The witnesses were unclear about the nature of the parikrama route and the number of idols. While furnishing a description of the idols inside the disputed structure, many witnesses acknowledged that they had not entered the disputed structure. Many of the witnesses had not read their affidavits in lieu of the Examination-in-Chief and had merely appended their signatures without understanding the contents. Many of the witnesses have not been able to confirm their assertions in the Examination-in-Chief and have in fact contradicted their own statements. Many of the witnesses offered accounts with respect to the disputed structure which are at variance with the pleaded case of Nirmohi Akhara. Some of the witnesses in fact supported the case in Suit 4 that Babri Masjid existed where prayers had been conducted. Consequently, the witness accounts cannot be regarded as credible proof in support of the case of Nirmohi Akhara.
M.6 Nirmohi Akhara’s claim to possession of the inner courtyard
296. The claim of Nirmohi Akhara in Suit 3 is in respect of the inner courtyard, including the three domed structure of the mosque. Nirmohi Akhara denies the incident of 22/23 December 1949 during the course of which the idols were surreptitiously installed into the disputed structure. According to Nirmohi Akhara, the structure is a temple and not a mosque. The oral evidence which has been adduced to support this submission has been analysed earlier. The oral evidence does not indicate any cogent, credible or trustworthy account of Nirmohi Akhara being in possession of the inner courtyard or structure. With this state of the record in regard to the oral accounts of the witnesses produced by Nirmohi Akhara, it becomes necessary to scrutinise whether the documentary evidence supports the case of Nirmohi Akhara being in possession of the inner courtyard and structure.
297. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 3, emphasized the findings contained in the judgments of Justice Sudhir Agarwal and Justice D V Sharma that Nirmohi Akhara had a presence at Ayodhya from 1734 after Mahant Govind Das left Jaipur to come to Ayodhya. Justice Sudhir Agarwal observed, while deciding issue 17 in Suit 3 that:
“799…Nirmohi Akhara, plaintiff no. 1 is a Panchayati Math of Ramanandi Sect of Bairagies and as such is a religious denomination following its religious faith and pursuit according to its own custom. We however further hold that its continuance in Ayodhya find sometimes (sic) after 1734 AD and not earlier thereto.”
Justice D V Sharma placed reliance on the evidence of Mahant Bhaskar Das (DW 3/1) and Raja Ramachandracharya (DW 3/20) to hold that:
“Nirmohi Akhara is a Panchayati of Ramanandi sect of Bairagies and as such is religious denomination. The custom has already been registered in the year 1949.”
298. These findings do not establish Nirmohis being in possession of the inner courtyard. While scrutinizing the documentary evidence which has been relied upon by them, a distinction must be drawn between a mere presence of Nirmohi Akhara at Ayodhya or around the disputed site and actual possession of the disputed structure. Mr S K Jain in that context adverted to the account of Tieffenthaler of 1770 which refers to the presence of the Bedi or cradle symbolizing the place of birth of Lord Ram. The reference to the cradle in Tieffenthaler’s account cannot be regarded as indicative of the Nirmohi Akhara being in possession of the disputed structure or inner courtyard of the mosque. Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18), who was a witness for Nirmohi Akhara stated that Ramchabutra is also called Bedi. The statement of this witness to the effect that the Bedi / cradle was at Ramchabutra cannot be taken out of context and has to be read in the light of the entirety of the evidence, including Tieffenthaler’s observations on what he had noticed. Among the other documents, which have been relied upon are:
(i) “East India Gazetteer of Hindustan” by Walter Hamilton;
(ii) Edward Thornton’s “The Gazetteer of the Territories under the Government of East India Company”;
(iii) The complaint of 25 September 1866 by Meer Rajab Ali Khateeb regarding the “Kothri” constructed by certain Bairagis inside the compound of the mosque;
(iv) Carnegie’s “Historical Sketch of Faizabad”;
(v) Permission granted to Mahant Khem Das on 13 April 1877 for the construction of a new gate on the northern side;
(vi) The appeal filed on 13 December 1877 against the grant of permission for the new gate;
(vii) The report made by the Deputy Commissioner in view of the above appeal;
(viii) The order of the Commissioner dated 13 December 1877 dismissing the appeal;
(ix) Gazetteer of the Province of Oudh (1877-78);
(x) The plaint in the suit instituted by Syed Mohd Asghar against Mahant Raghubar Das on 8 November 1882 seeking rent for the use of the Chabutra;
(xi) The order of the Sub-Judge, Faizabad dated 18 June 1883 dismissing the suit;
(xii) The application filed by Syed Mohd Asghar on 2 November 1883 for permission to carry out repairs of the mosque;
(xiii) The order of the Deputy Commissioner dated 12 January 1884;
(xiv) The order of the Assistant Commissioner dated 22 January 1884; and
(xv) The complaint by Mahant Raghubar Das dated 27 June 1884 seeking spot inspection in view of the work being carried out by Syed Mohd Asghar for white washing the walls of the mosque.
299. These documents have been analysed in the judgment of Justice Sudhir Agarwal who observed that the idol existed at Ramchabutra and Nirmohi Akhara was likely looking after the worship of the idol, which was not seriously disputed by the other Hindu parties. However, Justice Agarwal observed that there was no basis to hold that Nirmohi Akhara continued to do so even after the idols were shifted inside the structure on 22/23 December 1949. This finding was because Nirmohi Akhara plainly denied that any incident had taken place on 22/23 December 1949 and they had no cogent explanation to offer of the events which took place on the intervening night. A careful scrutiny of the documents which have been relied upon by Nirmohi Akhara does not lead to the inference that Nirmohi Akhara had exclusive possession of the disputed structure. We must bear in mind the submission of Mr S K Jain that the disputed structure of the mosque was landlocked and that the outer courtyard which included Ramchabutra, Sita Rasoi and the Bhandar had to be traversed in order to gain entry to the mosque. There were two gates to the outer courtyard namely Singh Dwar and Hanumat Dwar. But, would the landlocked character of the disputed structure lead ipso facto of the conclusion that Nirmohi Akhara was in possession of the inner structure? It is not possible to draw that inference on a preponderance of probabilities.
300. In 1885, a suit was instituted by Mahant Raghubar Das seeking permission for the construction of the temple on the Chabutra. The Sub-Judge at Faizabad in his judgment dated 24 December 1985 observed that though the area occupied by the Chabutra was in the possession and ownership of the plaintiff, permission for carrying out construction should be refused on the ground that it was not in public interest and would lay the seeds of conflict between the Hindus and Muslim communities. In appeal, the District Judge Faizabad on 18/26 March 1886 deleted the observations on the ownership of the Chabutra made in favour of Mahant Raghubar Das. Mr S K Jain, in his written submissions has fairly accepted that the events arising out of the Suit of 1885 have been relied upon to show the presence of Mahant Raghubar Das at the Ramchabutra in the outer courtyard. Besides this, the Nirmohis have been ambivalent about the Suit of 1885 indicating unawareness about it at one stage and then adopting an inconsistent position at other times.
301. The next set of documents relied on by Nirmohi Akhara commence from 1900. These documents are set out below:
(i) Agreement permitting Jhingoo to provide drinking water to pilgrims176;
(ii) H R Nevill’s “The Gazetteer of the United Provinces of Agra and Oudh 1905” stating that the Nirmohi Akhara sect formerly held the Ram Janmabhumi temple in Ramkot, the remains of which still belong to them;
(iii) Mutation entry in favour of the Mahant Raghunath Das177;
(iv) Agreement of Theka shop dated 13 October 1942178;
(v) Agreement dated 29 October 1945 executed in respect of a shop by Mahant Raghunath Das179;
(vi) The report by the Waqf Inspector stating that Muslims were not able to perform namaz Isha at the mosque due to the fear of Hindus and Sikhs180;
(vii) The report of the Waqf Inspector dated 29 December 1949 recording the presence of police personnel between 22/23 December 1949181, and that no namaz was being performed except on Friday when the mosque is open for 3-4 hours and that several bairagis were trying to forcibly take possession of the mosque;
(viii) The report of the receiver dated 5 January 1950 which refers to Nirmohi Akhara while depicting the boundaries of the property taken into possession by him.182 Post attachment on 5 January 1950, it has been submitted that objections were filed by Mahant Baldeo Das in the proceedings under Section 145183;
(ix) In 1961, permissions were sought for carrying out construction in the outer courtyard; and
(x) The clarification of the City Magistrate dated 9 February 1961 stating that there was no objection to the replacing of canvas or cover.
Adverting to the documents which have been relied upon by Nirmohi Akhara, Justice Sudhir Agarwal held that the contents of documents to which the defendants were not parties are not relevant on questions of title and possession.
The documentary evidence relied upon by Nirmohi Akhara does not shed light in respect of the premises within the inner courtyard.
302. Dr Rajeev Dhavan has, in the course of the hearing of the appeal, filed a detailed response to the exhibits which were relied upon by Nirmohi Akhara. The course of events in the history of the communal conflict indicates a series of conflagrations between Hindus and Muslims in 1856-57 and 1934. The mosque was partially damaged in 1934 and subsequently, obstructions were placed in the course of offering namaz in the mosque involving a denial of the right to pray for the Muslims. This is followed by the events which took place on 22/23 December 1949 when idols were surreptitiously placed under the central dome. Soon thereafter, proceedings were initiated under Section 145 resulting in the attachment of the property. In this background, it is difficult to accept the case of Nirmohi Akhara that the disputed structure was a temple which was in its exclusive possession and that no incident had taken place on 22/23 December 1949.
Documentary evidence in regard to the mosque (1934-1949)
303. In order to refute the claim of Nirmohi Akhara in regard to possession of the disputed structure, Mr Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central Waqf Board relied on documentary evidence to support the case that the structure situated within the inner courtyard was a mosque and that it was being used by Muslims to offer namaz from 1934 to 1949. This documentary evidence has a bearing on the correctness of the claim of Nirmohi Akhara in regard to exclusive possession of the mosque and hence needs to be scrutinised. The documentary evidence consists of the following:
(i) Certified copy of the order dated 4 June 1942184 and decree dated 6 July 1942 in Regular Suit 95 of 1941 (Mahant Ramcharan Das v Raghunath Das) before the Additional Civil Judge, Faizabad.185 A compromise was arrived at in the Suit. The terms of compromise contain a specific reference to the “Babri Masjid”186:
“2. A pucca temple along with lands situated at Janambhumi- Babri Masjid in Mohalla Ramkot, City Ayodhya, Pargana Haveli Awadh, Tehsil & Dist. Faizabad, whose boundaries are described as under:
East : Parti & Kabristan (Graveyard) West: Babri Masjid
North: Pucca Road
South: Kabristan (Graveyard).”
The suit was between the Nirmohis inter se. The above document indicates that the existence of the mosque cannot be denied;
(ii) After the riots which took place on 27 March 1934 on or about the occasion of Bakri-Eid, a portion of the mosque was destroyed. In that connection, there are documents relating to the repair of the premises:
(a) Permission granted for cleaning of Babri Masjid and its use for religious services187;
(b) Application of Mohd Zaki and others dated 5 June 1934 for the recovery of fines from the Bairagis for causing damage to the mosque188;
(c) The order of the District Magistrate dated 6 October 1934 for the payment of compensation for the damage caused to the mosque189;
(d) Application of Tahawar Khan, the contractor, dated 25 February 1935 for the payment of his bills for the repair of the mosque190;
(e) The order of the Deputy Commissioner, Faizabad dated 26 February 1935 for inspection of the work done by the SDM Sadar prior to payment of bills for the repair of the mosque191;
(f) Estimate of repairs submitted by the contractor on 15 April 1935 including the repair of the domes192;
(g) An application of the contractor dated 16 April 1935 in regard to the delay in the completion of work. The letter stated that the repair to the dome was under preparation as were the marble tablets with the inscriptions of Allah193;
(h) Inspection note dated 21 November 1935 of the Assistant Engineer, Public Works Department, Faizabad regarding repair of Babri Masjid, noting that the work was inspected and found to be satisfactory194;
(i) Report of the bill clerk dated 27 January 1936 on the bill of the contractor regarding the repair of the mosque195;
(j) Order of Mr A D Dixon dated 29 January 1936 regarding payment for the work of repair of Babri Masjid196; and
(k) Application of the contractor dated 30 April 1936 complaining of the deductions made from his bill for the repair of Babri Masjid.197
The above documents which have been duly exhibited indicate that following the riots of 1934, a Muslim contractor was engaged for the repairs of the Babri Masjid. There is a reference to the damage sustained by the mosque and to the work of restoration that was carried out by the contractor.
304. Besides the documentary evidence relating to repair, another set of documents relates to the services of the Imam at Babri Masjid:
(i) An agreement/undertaking was executed by Syed Mohd Zaki, trustee of Babri Masjid on 25 July 1936 in favour of the Maulvi Abdul Ghaffar, Pesh Imam of Babri Masjid regarding the payment of his outstanding salary until 1935198;
(ii) Application of Syed Mohd Zaki dated 19/20 July 1938 before the Waqf Commissioner in response to a notice under Section 4 of the Muslim Waqf Act 1936199;
(iii) Application of Abdul Ghaffar, Pesh Imam Babri Masjid dated 20 August 1938 before the Waqf Commissioner, Faizabad, seeking a direction to the Mutawalli for the payment of the arrears of his salary due upto 31 July 1938200;
(iv) Reply of the brother of Syed Mohd Zaki (the former Mutawalli) dated 20 November 1943 to the notice of the Sunni Waqf Board dated 27 October 1943.201 The letter contains a clear reference to the arrangement made for maintaining the daily needs for the mosque as well as the requirements for Friday prayers:
“That mat, floor cloth and janamaaz – prayer rug etc. are kept sufficient for daily needs only. Other floor cloth and prayer rugs are kept with the Maulavi Abdul Ghaffar, Pesh Imam. These are brought to the mosque on every Friday and are kept back in the same place after Jumah prayers because floor cloth often gets stolen from the masjid. It is for the reason that all mats and floor cloth are not kept in the masjid.”
(v) Notice dated 11 April 1945 of the Shia Waqf Board to the Sunni Waqf Board before instituting a suit under Section 5(2) of the UP Muslim Waqf Act 1936, challenging the notification dated 26 February 1944 declaring the mosque as a Sunni Waqf202;
(vi) Notice dated 25 November 1948 of the Secretary, Sunni Waqf Board about charge of Tauliat due to the death of the Mutawalli203;
(vii) The report of the Waqf Inspector dated 10/12 December 1949 regarding the harassment of Muslims while going for prayers204; and
(viii) Report of Waqf Inspector dated 23 December 1949 in regard to the condition of Babri Masjid, stating that keys remained with the Muslims and only Friday prayers were being offered205:
“I had to inquire into the present condition of Babri Masjid Ayodhya and Qabrastan (graveyard) on 22nd December, 49 I spent the whole day making inquiry. My inquiry made me aware about the following conditions and events. A period of three months has elapsed to the arrival of Baba Raghunath ostensibly to visit the janamasthan. He exhorted the Beragis and Pujaris – worshippers forcefully that Ramayanpath – recitation of Ramayan – should be done at janmasthan. This message spread to all nearby and surrounding areas. After a month of the departure of Baba Raghubardas, thousands of Hindus and Pujaris and Pandits gathered there for Ramayan path. The path (recitation) went on for weeks. In the meantime the Beragis dug outside the front part of the Masjid and part of Qabrasthan and leveled it to the ground. They also erected a makeshift maker and put stones on the site of some graves. There was police bandobast at the time of recitation of Ramayan. Despite this, the graves were dug out. Police arrested four people who were later released on bond. Khawaja Rahmatullah’s mausoleum which is nearby the graveyard on a rising mound has also been dug out and levelled to the ground. A Bairagi has started residing there. The Bairagis’ are squatting near the pucca grave which is near the door of the courtyard adjacent to the walls of the Masjid. The Bairagis have erected a hut. Before the commencement of this recitation, the Bairagis had looted and broken the fence. The muezzin was thrashed and thereafter they tried to dug out the inscription on the Masjid. Two Muslims who were strangers were beaten and they suffered serious injuries. Now there are two camps outside the Masjid. In one of them are stationed police constables and in another sepoys of the battalions. The total numbers of (constables and sepyoys) is about 7 to 8. Now the Masjid remains locked. No Azaan is allowed nor Namaaz performed except on the day and time of Jumaaah. The lock and the keys remain with Muslims. But the police do not allow them to open the lock. The lock is opened on the day of Jumaah, i.e. Friday for two or three hours. During this period, the Masjid is cleaned and Jumaah prayers are offered. Thereafter it is locked as usual. At the time of Jummah much noise is created. When the Namazis go downstairs, shoes and clouds of earth are thrown at them. But Muslims do not react to it out of fear. After Raghavdas, Mr Lohia had also come to Ayodhya and he had addressed people saying that flower plants should be planted on the place of graves. A minister also came from Lucknow. The Bairagis told him that Masjid is the Janmbhoomi. Help us get it. He refused to do this by force. Hearing this Bairagis got angry with him, and he had to return to Faizabad under Police protection. In the meantime, in the Kanak Bhavan Mandir of Ayodhya, Mahant Babasthan, Mahant Raghubardas, Vedantiji, Narayan Das, Acharyaji wanted to call Muslims but none came out there with the exception of Zahoor Ahmad. Hindus asked Zahoor Ahmad to help them get the Masjid. He was told that if it is done then we are brothers, otherwise, we are enemies. I stayed at Ayodhya during night. In the morning I came to know that Bairagis are trying to occupy the Masjid forcibly. It is Jumaah-Friday –today. When I reached the site, 10 to 15 Bairagis with clubs and axes were found present in the courtyard of the Masjid and many Bairagis are sitting on the door of the Masjid with clubs. Hindus of the surrounding area are also gathering there. City Magistrate, Police Officer of the City and other police force is deployed in sufficient numbers. Muslims from Faizabad would certainly come to offer of Jumaah (Friday) prayers. What would be their fate I do not know. Now I am crossing the river and going to Lakkadmandi Gonda.” (Emphasis supplied)
Justice Sudhir Agarwal held that the undertaking/agreement206 for the payment of salary including arrears to the Pesh Imam has not been proved. Besides being exhibited in evidence, this document finds a reference in an application by the Pesh Imam before the Waqf Inspector for the payment of his salary in terms of the agreement, a copy of which was filed with the application.207 As regards the reports of the Waqf Inspector, the written submissions filed on behalf of the Nirmohi Akhara in fact rely on both the reports. The reason indicated by Justice Sudhir Agarwal for not relying on the reports – that no one has seen the Waqf Inspector is specious. The report dated 10/12 December 1949 has been specifically relied upon in the plaint in Suit 5 and in the Examination-in-Chief of plaintiff 3 in Suit 5.
305. The above documents demonstrate:
(i) The steps taken after the riots of 1934 for the restoration of the mosque;
(ii) The repairs carried out by the contractor for repairing the mosque and payments made by Public Works Department;
(iii) The engagement of services of the Pesh Imam and the attendant dispute pertaining to non-payment of his arrears of salary;
(iv) The report of the Waqf Inspector in December 1949 stating that the Muslims were being harassed in offering prayers in the mosque as a result of which only Friday prayers were being offered; and
(v) The apprehension expressed by the Waqf Inspector of danger to the mosque.
306. In view of the above analysis of the oral evidence and documentary material, the following conclusions can be drawn:
(i) There are serious infirmities in the oral accounts of Nirmohi witnesses that the disputed structure was not a mosque but the Janmabhumi temple;
(ii) The documentary evidence relied on by Nirmohi Akhara does not establish its possession of the inner courtyard and the structure of the mosque within it, being the subject of Suit 3;
(iii) Contrary to the claims of Nirmohi Akhara, documentary evidence establishes the existence of the structure of the mosque between 1934 and 1949; and
(iv) As regards namaz within the mosque, the Muslims were being obstructed in offering prayers as a result of which by December 1949, Friday prayers alone were being offered.
This documentary evidence in regard to the presence and use of the mosque until December 1949 is supported by the letter of the Superintendent of Police, Faizabad dated 29 November 1949 specifically, referring to the attempts which were being made to surround the mosque so as to lead the Muslims to abandon it. This is coupled with the letter dated 16 December 1949 of the District Magistrate to the Chief Secretary seeking to allay the apprehensions in regard to the safety of the mosque.
307. Suit 3 has been held to be barred by limitation. The oral and documentary evidence have been analysed above to render a full adjudication of the claims of Nirmohi Akhara: (i) denying the existence of the mosque; (ii) asserting that the structure in the inner courtyard was a temple which was in its exclusive possession; and (iii) denying the incident on the night between 22/23 December 1949. Nirmohi Akhara has failed to prove its assertions. The documentary evidence will be of relevance in determining the objections raised by Nirmohi Akhara (supported by the Sunni Central Waqf Board) to the maintainability of Suit
5. Whether Nirmohi Akhara has established that they were a shebait in service of the deity of Lord Ram was an issue struck in Suit 5 and will hence be considered while dealing with that suit. Some of the evidence which has been discussed above is also of relevance on the question of title and will be re-visited at the appropriate stage in the course of this judgment.
N. Suit 5: The deities
N.1 Array of parties
308. Suit 5 was instituted on behalf of the first and second plaintiffs through a next friend who was impleaded as the third plaintiff. The first and second plaintiffs are: “Bhagwan Sri Ram Lala Virajman” and “Asthan Sri Ram Janma Bhumi, Ayodhya”. The third plaintiff was Sri Deoki Nandan Agarwala, a former Judge of the Allahabad High Court. The third plaintiff was subsequently substituted by an order of the High Court as a result of his death.
309. The first defendant is the legal representative of Gopal Singh Visharad (the plaintiff in Suit 1); the second defendant was the plaintiff in Suit 2 (which was subsequently withdrawn); the third defendant is Nirmohi Akhara (the plaintiff in Suit 3); the fourth defendant is the Sunni Central Waqf Board (the plaintiff in Suit 4); the fifth and sixth defendants are Muslim residents of Ayodhya and Faizabad; the seventh, eighth, ninth and tenth defendants are the State of Uttar Pradesh and its officers; the eleventh defendant is the President of the All India Hindu Mahasabha; the twelfth and thirteenth defendants represent the All India Arya Samaj and the All India Sanatan Dharma Sabha respectively; the fourteenth defendant was Sri Dharam Das, described as the Chela of Baba Abhiram Das, who was allegedly involved in the incident which took place on 22/23 December 1949; defendants fifteen and sixteen are Hindu residents of Ayodhya and Faizabad; defendant seventeen was a resident of District Faizabad (since deleted); defendants eighteen and nineteen are Mahant Ganga Das and Swami Govindacharya Manas Martand; defendant twenty was Umesh Chandra Pandey who opposed the claim of the Nirmohi Akhara in Suit 3 (but did not lead any evidence); defendant twenty-one is described as the “Sri Ram Janma Bhumi Nyas”, a trust which has been impleaded through its managing trustee Sri Ashok Singhal; defendants twenty-two to twenty-five are the Shia Central Board of Waqfs, individuals representing the Shias; defendant twenty-six is the General Secretary of the Jamaitul Ulema Hind U P and defendant twenty-seven is a Muslim resident of Faizabad.
N.2 No contest by the State of Uttar Pradesh
310. The State of Uttar Pradesh filed a statement (in Suit 4 of 1989) stating that “the government is not interested in the properties in dispute” and the actions of the officials in regard to the properties in dispute were bona fide in due discharge of their official duties.
N.3 Pleadings
311. The plaint in Suit 5 proceeds on the foundation that the first and second plaintiffs “are juridical persons with Bhagwan Sri Rama as a presiding deity of the place”. The third plaintiff is described as a ‘Vaishnava Hindu’. The plaint adopts for its description of Ram Janmabhumi, “two site plans of the building premises and of the adjacent area known as Sri Ram Janma Bhumi prepared by Shiv Shankar Lal” in discharge of his duty as a Commissioner appointed by the Court of the Civil Judge, Faizabad in Suit 1. These site plans together with his report are Annexures I, II and III to the plaint.
312. After setting out a history of the earlier suits instituted before the civil court208 and the proceedings under Section 145, the plaint states that these suits continue to remain pending “with a dim prospect of their immediate hearing”. Though, the seva and puja of the plaintiff deities is stated to have been carried out properly, it has been stated that darshan has been allowed only from behind a barrier for Hindu devotees. The plaintiff deities and devotees are stated to be “extremely unhappy” with the delay in the disposal of the suits, the deterioration in the management of the affairs of the temple and with the alleged misappropriation of the offerings of worshippers by pujaris and other temple staff. The Hindu devotees, it has been stated, are desirous of having a new temple constructed after removing the existing structure at Ram Janmabhumi. According to the plaint, the head of the Ramananda Sampradaya was entrusted with the task of addressing the mismanagement of the temple and facilitating the construction of a new temple. This eventually led to the Deed of Trust dated 18 December 1985 which was registered with the Sub-Registrar. The trust has been named the “Sri Ram Janma Bhumi Nyas” and consists of ten trustees. In addition, the Vishva Hindu Parishad, through its Marga Darshak Mandal is to nominate four trustees, which it did. Further, five trustees have been nominated from amongst “eminent Hindu citizens of India”. Of the aforesaid five persons, the third plaintiff was nominated as one of the trustees. Ram Janmabhumi Nyas is stated to be directly interested in the seva-puja and other affairs of the plaintiff deities. The plaintiffs further indicate that the existing suits “are inadequate” and cannot result in a settlement of the dispute as neither the presiding deity, Bhagwan Sri Ram Virajman, nor Asthan Sri Ram Janma Bhumi (both of whom are stated to be juridical persons) were impleaded in the previous suits. Moreover, it is alleged that some of the parties to the earlier suits are “to some extent” involved in seeking to gratify their personal interest by obtaining control over worship of the plaintiff deities. In this background, the plaintiffs have instituted a suit of their own.
313. The plaint states that it is established by “unimpeachable authority” that the premises in dispute represent the place where Lord Ram was born. The second plaintiff, described as “Asthan Sri Ram Janma Bhumi”, is stated to be an independent object of worship, worshipped by the devotees as personifying the divine spirit of Lord Ram. Hence, it has been averred that the land at Ram Janmabhumi has possessed a juridical personality even prior to the construction of the existing structure or the installation of idols within the central dome. It has been stated that Hindus worship not merely the material form or shape of an idol but the divine spirit which is invoked by consecration or prana pratishtha. It is stated that the divine spirit is worshipped as a deity at the site of the second plaintiff and hence it has been submitted that the place itself is a deity. The deity, it has been submitted, being indestructible, continues to exist so long as the place exists, and the place being land, continues to exist irrespective of any construction on it.
314. The plaint proceeds to rely on the 1928 edition of the Faizabad Gazetteer, in support of the plea that the ancient temple, called the Ram Janmabhumi temple, was destroyed by Babur in 1528 and on its site, a mosque was built largely with the materials of the destroyed temple, including the Kasauti pillars. Yet, according to the plaint, the worshippers continued to worship Lord Ram through symbols such as the Charan and Sita Rasoi and the idol of Lord Ram on the Ramchabutra within the enclosure. It has been submitted that no one could enter the building except after passing through areas where Hindus worshipped. The plaint disputes whether a mosque could validly be constructed in accordance with Islamic tenets on the site of a Hindu temple which is surrounded by Hindu places of worship. According to the plaintiffs, worshippers of the deities have continued to pray at Ram Janmabhumi for centuries; the place belongs to the deities and no valid waqf was ever created or could have been created. Despite occasional trespass by the Muslim residents, it has been stated that title and possession vested in the plaintiff deities. It is alleged that no prayers were offered at the mosque. After independence, the graves surrounding Ram Janmabhumi were dug up by the Bairagis and eventually on the night of 22/23 December 1949, an idol of Lord Ram was installed with due ceremony under the central dome of the disputed building. This was followed by proceedings under Section 145 to which the plaintiff deities were not parties. In the alternate to the plea of the original title vesting in the plaintiff deities, it has been stated that the deities have been in possession and any claim of title adverse to the deities stands extinguished by adverse possession.
315. The plaint sets out that Hindu devotees were desirous of constructing a temple at the disputed site and, the “active movement” was scheduled to commence from 30 September 1989 with the foundation stone being laid on 9 November 1989. Nirmohi Akhara, it has been stated, has put forward a personal interest in the management of the worship of the plaintiff-deities and there being no other fit person to represent them, the third plaintiff has instituted the suit as next friend. It is averred that in order to remove any obstacles in the fulfilment of the movement to construct a new temple, the entire premises at the disputed site constitute “one integral complex” with “a single identity”. The claim of the Muslims is stated to be confined to the enclosure within the inner boundary wall.
The plaint was amended after the demolition of Babri Masjid in 1992 to incorporate averments pertaining to the circumstances prior to, during and following the demolition. According to the plaintiffs, shebaiti rights were taken away and entrusted to the statutory receiver following the enactment of the acquisition ordinance and the law enacted by Parliament.
The cause of action for the institution of the suit is stated to have accrued “from day to day” especially when the plans for construction of a new temple were alleged to be obstructed by violent action on the part of certain Muslims.
On the above pleadings, two reliefs have been sought in Suit 5:
(a) A declaration that the entire premises of Sri Ram Janmabhumi described in Annexures I, II and III belong to the plaintiff-deities; and
(b) A permanent injunction prohibiting the defendants from interfering with or obstructing the construction of a new temple at Sri Ram Janmabhumi after the demolition and removal of the existing buildings and structures.
N.4 Written statements
Nirmohi Akhara
316. In response to Suit 5, Nirmohi Akhara filed its written statement submitting that the suit instituted through a next friend is malicious and is a “design to damage the title and interest of the answering defendants”. Nirmohi Akhara denies the locus of the next friend as the third plaintiff to represent the deities. It specifically denies the status of the second plaintiff as a juridical person. Bhagwan Sri Ram, according to Nirmohi Akhara is installed not at Ram Janmabhumi but in the temple known as the Janmabhumi temple for whose charge and management it has instituted Suit 3. According to the written statement, Asthan simply means a place and is not a juridical person. The third plaintiff, it has been asserted is not a worshipper of the deity and is a Vaishnavite and has no locus to represent the deity or the “so-called Asthan”. It has been urged that there was an attempt to mobilise a sum of Rs. 25 crores for the construction of a new temple. Nirmohi Akhara states that the birth-place of Lord Ram is not in dispute and it is located at Ayodhya where the Ram Janmabhumi temple stands. The Ram Janmabhumi temple is stated to be in the disputed land which the Muslims claim to be a mosque. Asthan Janmabhumi is stated to be the birth-place of Lord Ram comprising of the entire city of Ayodhya. Nirmohi Akhara has claimed that it is the shebait of the idol of Lord Ram installed in the temple in dispute and that it alone has the right to control, supervise, repair and reconstruct the temple. It has been submitted that Nirmohis’ suit was filed in 1959, whereas, the Ram Janmabhumi Nyas has come into existence in 1985 “with an obvious design to damage the title and interest of the Akhara”. Nirmohi Akhara has alleged that the idol of Lord Ram was always installed in the Ram Janmabhumi temple; that the temple belongs to it and no one else has the right to construct a new temple. Suit 5 has been opposed on the ground that the plaintiffs have “no real title to sue” and that the suit is an encroachment on the rights of the Nirmohis to manage the temple. Hence, according to it, the disputed premises mentioned by the plaintiffs in Suit 5 belong to the Nirmohi Akhara and the plaintiffs cannot seek a declaration against the right and title of Nirmohi Akhara. Accordingly, Nirmohi Akhara has prayed for the dismissal of Suit 5.
In its additional written statement, Nirmohi Akhara has stated that the outer Sahan (courtyard) “carried a little temple” of Lord Ram which was regularly worshipped according to the customs prevailing among Ramanandi Bairagis. The outer part of this temple is stated to have been in the management and charge of Nirmohi Akhara as its shebait till the outer portion was attached on 16 February 1982 in Regular Suit 239 of 1982. The outer portion, it has been stated, has been in possession and management of Nirmohi Akhara and the idol of Lord Ram installed on Ramchabutra is stated to be a distinct legal entity owned by Nirmohi Akhara. It has been submitted that the Magistrate’s order of attachment under Section 145 pertained only to the three-domed structure where the idol of Lord Ram is stated to have been installed by Nirmohi Akhara from time immemorial and which was always in its management and possession. In a further written statement, Nirmohi Akhara has claimed that the constitution of the Ram Janmabhumi Nyas is illegal.
All India Hindu Mahasabha
317. The President of the All India Hindu Mahasabha filed a written statement claiming that as a party to the Sri Ram Janmabhumi Nyas, it is directly dedicated to the seva-puja and other affairs of the Ram Janmabhumi temple.
Sunni Central Waqf Board
318. The Sunni Central Waqf Board has opposed the suit of the plaintiff-deities.
In its written statement, it denies the juridical status of the first and second plaintiffs and the locus of the third plaintiff to act as a next friend. According to the Sunni Central Waqf Board, no deities were installed within the premises of Babri Masjid until the idol was surreptitiously brought in on the night between 22-23 December 1949. The written statement denies the presence of a presiding deity or of “any Asthan”. Placing reliance on the dismissal of the Suit of 1885 instituted by Mahant Raghubar Das, it has been submitted that the plaintiffs cannot claim any portion of the Babri Masjid to have assumed a juridical personality by the name of “Ashthan Ram Janmabhumi”, particularly in the absence of the installation of a deity or a personification in accordance with the tenets of Hindu religion or law. The written statement contains a denial of the allegation that their existed any temple at the site of Babri Masjid or that the mosque was constructed after destroying it, with the material of the alleged temple. The mosque, it has been averred, has always been used as a mosque since its construction during the regime of Babur. The land is stated to have belonged to the State when it was constructed, and the mosque is claimed to have been built on vacant land. The Ramchabutra is alleged to have been created around 1857. The possession of the Muslims is stated to have been uninterrupted and continuous since the construction of the mosque up to 23 December 1949 and hence, any right, title or interest to the contrary would stand extinguished by adverse possession. According to the written statement, regular prayers were offered in the mosque up to 22 December 1949 and Friday prayers until 16 December 1949. According to the written statement, the cause of action must be deemed to have accrued in December 1949 when the property was attached, and the Muslims denied the claim of the Hindus to perform puja in the mosque. Hence, the suit is stated to be barred by limitation.
319. The fifth defendant209, in his written statement, has denied the locus of the Nyas. Besides this, it has been submitted that the premises have always been a mosque since its construction in the sixteenth century and were used by Muslims for offering namaz and for no other purpose. The fifth defendant denied the juridical status of the first and second plaintiffs and the locus of the third plaintiff. In an additional written statement filed jointly by the Sunni Central Waqf Board and the fifth defendant, the contents of the amended plaint have been denied and it has been urged that the claim in regard to the idols stood extinguished after they were removed on 6 December 1992.
N.5 Issues and findings of the High Court
320. The issues which were framed in the Suit and the findings of the three judges in the High Court are catalogued below:
1 Whether the first and second plaintiffs are juridical persons.
• Justice S U Khan – The idol is duly capable of holding property.
• Justice Sudhir Agarwal – Answered in the affirmative – both plaintiffs 1 and 2 are juridical persons.
• Justice D V Sharma – Decided in favour of the plaintiffs.
2 Whether the suit in the name of deities described in the plaint as the first and second plaintiffs is not maintainable through the third plaintiff as next friend.
• Justice S U Khan – Followed the decision of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Suit held to be maintainable.
• Justice D V Sharma – Suit held to be maintainable.
3(a) Whether the idol in question was installed under the central dome of the disputed building (since demolished) in the early hours of December 23, 1949 as alleged by the plaintiff in paragraph 27 of the plaint as clarified in their statement under Order X Rule 2 of the CPC.
• Justice S U Khan – The idols were placed inside the mosque for the first time during the night of 22/23 December 1949.
• Justice Sudhir Agarwal – Answered in the affirmative.
• Justice D V Sharma – Answered in the affirmative.
3(b) Whether the same idol was reinstalled at the same place on a Chabutra under the canopy.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the affirmative.
• Justice D V Sharma – Answered in the affirmative.
3(c) Whether the idols were placed at the disputed site on or after 6 December 1992 in violation of the court’s order dated 14 August 1989 and 15 November 1991.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the negative.
• Justice D V Sharma – Decided in favour of the plaintiffs.
3(d) If the aforesaid issue is answered in the affirmative, whether the idols so placed still acquire the status of a deity.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the affirmative.
• Justice D V Sharma – Answered in the affirmative.
4 Whether the idols in question had been in existence under the “Shikhar” prior to 6 December 1992 from time immemorial as alleged in paragraph 44 of the additional written statement of Nirmohi Akhara (the third defendant).
• Justice S U Khan – The idols were placed inside the mosque for the first time on 22-23 December 1949.
• Justice Sudhir Agarwal – Answered in the negative; the idols under the central dome were in existence prior to 6 December 1992 but were placed during the night of 22-23 December 1949.
• Justice D V Sharma – The idols were not under the central dome prior to 22-23 December 1949.
5 Is the property in question properly identified and described in the plaint.
• Justice S U Khan – No temple was demolished for constructing the mosque. Until the mosque was constructed during the reign of Babur, the premises were neither treated nor believed to be the birth-place of Lord Ram.
• Justice Sudhir Agarwal – There is no ambiguity in the identification or description of the property.
• Justice D V Sharma – Answered in favour of the plaintiffs.
6 Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their next friend and is the suit not competent on this account.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the negative, in favour of the plaintiffs.
• Justice D V Sharma – Decided in favour of the plaintiffs.
7 Whether Nirmohi Akhara (the third defendant) alone is entitled to represent the first and second plaintiffs, and is the suit not competent on that account as alleged in paragraph 49 of the additional written statement of Nirmohi Akhara (the third defendant).
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the negative against Nirmohi Akhara, in favour of the plaintiffs.
• Justice D V Sharma – Answered against Nirmohi Akhara, in favour of the plaintiffs.
8 Is the defendant Nirmohi Akhara the “Shebait” of Bhagwan Sri Ram installed in the disputed structure.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered against Nirmohi Akhara.
• Justice D V Sharma – Answered against Nirmohi Akhara, held that Nirmohi Akhara is incompetent to represent the first and second plaintiffs.
9 Was the disputed structure a mosque known as Babri Masjid?
• Justice S U Khan – The mosque was constructed by or under the orders of Babur. Until 1934, Muslims offered regular prayers and thereafter, until 22 December 1949 only Friday prayers were offered.
• Justice Sudhir Agarwal – Answered against the plaintiffs.
• Justice D V Sharma – Answered against the Sunni Central Waqf Board and in favour of the plaintiffs.
10 Whether the disputed structure could be treated to be a mosque on the allegations contained in paragraph 24 of the plaint.
• Justice S U Khan – The mosque was a valid mosque.
• Justice Sudhir Agarwal – Answered in the affirmative.
• Justice D V Sharma – The mosque was constructed upon demolition of the temple.
11 Whether on the averments made in paragraph 25 of the plaint, no valid waqf was created in respect of the structure in dispute to constitute it as a mosque.
• Justice S U Khan – The mosque is a valid mosque.
• Justice Sudhir Agarwal – Answered in the affirmative.
• Justice D V Sharma – No valid waqf with respect to the disputed property.
12 Deleted vide order dated 23 February 1996.
13 Whether the suit is barred by limitation.
• Justice S U Khan – The suit is not barred by limitation.
• Justice Sudhir Agarwal – The suit is not barred by limitation.
• Justice D V Sharma – The suit is not barred by limitation.
14 Whether the disputed structure claimed to be Babri Masjid was erected after demolishing Janmasthan temple at its site.
• Justice S U Khan – No temple was demolished for the construction of the mosque. Until the mosque was constructed during the reign of Babur, the premises were not believed to be the birth-place of Lord Ram.
• Justice Sudhir Agarwal – Answered in the affirmative.
• Justice D V Sharma – Decided in favour of the plaintiffs, against the Sunni Central Waqf Board.
15 Whether the disputed structure claimed to be Babri Masjid was always used only by the Muslims regularly for offering namaz ever since its alleged construction in 1528 A.D. to 22 December 1949 as alleged by the defendants 4 and 5.
• Justice S U Khan – Until 1934, Muslims were offering regular prayers in the mosque. Thereafter, until 22 December 1949, only Friday prayers were offered.
• Justice Sudhir Agarwal – At least from 1860, namaz was offered in the inner courtyard. The last namaz was on 16 December 1949.
• Justice DV Sharma – Connected with Issue Nos. 1-B(c), 2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit 4 which were decided against the Sunni Central Waqf Board.
16 Whether the title of plaintiffs 1 and 2, if any, was extinguished as alleged in paragraph 25 of the written statement of defendant 4. If yes, have plaintiffs 1 and 2 reacquired title by adverse possession as alleged in paragraph 29 of the plaint.
• Justice S U Khan – Both parties were in joint possession before 1855 and hence, there was no need to decide the issue of adverse possession.
• Justice Sudhir Agarwal – The title of the first and second plaintiffs has never been extinguished.
• Justice DV Sharma – Connected with Issue Nos. 1B-(c), 2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit 4 which were decided against the Sunni Central Waqf Board.
17 Deleted vide order dated 23 February 1996.
18 Whether the suit is barred by Section 34 of the Specific Relief Act as alleged in paragraph 42 of the additional written statement of defendant 3 and also as alleged in paragraph 47 of the written
statement of defendant 4 and paragraph 62 of the written statement of defendant 5.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the negative against the third, fourth and fifth defendants.
• Justice D V Sharma – In favour of the plaintiffs, against the defendants.
19 Whether the suit is bad for non-joinder of necessary parties, as pleaded in paragraph 43 of the additional written statement of defendant 3.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in the negative.
• Justice D V Sharma – The suit held to maintainable.
20 Whether the alleged Trust creating the Nyas, defendant 21, is void on the facts and grounds stated in paragraph 47 of the written statement of defendant 3.
• Justice S U Khan – Not answered.
• Justice Sudhir Agarwal – Not answered.
• Justice D V Sharma – Answered in favour of the plaintiffs.
21 Whether the idols in question cannot be treated as deities as alleged in paragraphs 1,11,12,21,22,27 and 41 of the written statement of defendant 4 and in paragraph 1 of the written statement of defendant 5.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal and Justice D V Sharma – Answered against the Sunni Central Waqf Board and fifth defendant.
22 Whether the premises in question or any part thereof is by tradition, belief and faith the birth-place of Lord Ram as alleged in paragraphs 19 and 20 of the plaint? If so, its effect.
• Justice S U Khan – Neither was any temple demolished for constructing the mosque nor until the construction of the mosque were the premises treated or believed to be birth-place of Lord Ram.
• Justice Sudhir Agarwal – The place of birth of Lord Ram as believed and worshipped by Hindus is covered under the central dome of the three- domed structure in the inner courtyard of the premises in dispute.
• Justice D V Sharma – Connected with Issue Nos 1, 1(a), 1(b),1B-(b), 11,19(d),19(e) and 19(f) in Suit 4. Decided against the Sunni Central Waqf Board.
23 Whether the judgment in Suit of 1885 filed by Mahant Raghubar Das in the Court of Special Judge, Faizabad is binding upon the plaintiffs by application of the principles of estoppel and res judicata as alleged by the defendants 4 and 5.
• Justice S U Khan – Section 11 of the CPC is not attracted as virtually nothing was decided in the Suit of 1885.
• Justice Sudhir Agarwal – Answered in the negative.
• Justice D V Sharma – Answered in favour of the plaintiffs.
24 Whether worship has been done of the alleged plaintiff-deity on the premises in the suit since time immemorial as alleged in paragraph 25 of the plaint.
• Justice S U Khan – Neither was any temple demolished for constructing the mosque nor were the premises treated or believed to be the birth-place of Lord Ram until the mosque was constructed.
• Justice Sudhir Agarwal – Worship of the first and second plaintiffs has been since time immemorial: issue answered in the affirmative.
• Justice DV Sharma – Connected with Issue Nos. 1-B(c), 2,4,12,13,14,15,19(a),19(b),19(c), 27 & 28 of Suit 4. Answered against the Sunni Central Waqf Board.
25 Whether the judgment and decree dated 30 March 1946 passed in Suit no 29 of 1945 is not binding upon the plaintiffs as alleged by the plaintiffs.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – The plaintiffs were not a party to the suit and the judgment is therefore not binding on them.
• Justice DV Sharma – Decided in favour of the plaintiffs.
26 Whether the suit is bad for want of notice under Section 80 CPC as alleged by the defendants 4 and 5.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in favour of the plaintiffs.
• Justice D V Sharma – Answered in favour of the plaintiffs.
27 Whether the plea of suit being bad for want of notice under Section 80 CPC can be raised by defendants 4 and 5.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – Answered in favour of the plaintiffs.
• Justice D V Sharma – Answered in favour of the plaintiffs.
28 Whether the suit is bad for want of notice under Section 65 of the U.P. Muslim Waqf Act 1960 as alleged by defendants 4 and 5. If so, its effect.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – The provision is not applicable.
• Justice D V Sharma – Decided in favour of the plaintiffs.
29 Whether the plaintiffs are precluded from bringing the present suit on account of dismissal of Suit 57 of 1978 (Bhagwan Sri Ram Lala v State) of the Court of Munsif Sadar, Faizabad.
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal and Justice D V Sharma – Answered in favour of the plaintiffs.
30 To what relief, if any, are plaintiffs or any of them entitled?
• Justice S U Khan – Adopted the findings of Justice Sudhir Agarwal.
• Justice Sudhir Agarwal – The suit was partly decreed in accordance with the directions contained in paragraph 4566.
• Justice D V Sharma – The plaintiffs were held entitled to relief and the suit was decreed.
321. Justice Sudhir Agarwal granted the following relief in the Suit:
“(i) It is declared that the area covered by the central dome of the three domed structure, i.e., the disputed structure being the deity of Bhagwan Ram Janamsthan and place of birth of Lord Rama as per faith and belief of the Hindus, belong to plaintiffs (Suit-5) and shall not be obstructed or interfered in any manner by the defendants. This area is shown by letters AA BB CC DD is Appendix 7 to this judgment.
(ii) The area within the inner courtyard denoted by letters B C D L K J H G in Appendix 7 (excluding (i) above) belong to members of both the communities, i.e., Hindus (here plaintiffs, Suit-5) and Muslims since it was being used by both since decades and centuries. It is, however, made clear that for the purpose of share of plaintiffs, Suit-5 under this direction the area which is covered by (i) above shall also be included.
(iii) The area covered by the structures, namely, Ram Chabutra, (EE FF GG HH in Appendix 7), Sita Rasoi (MM NN OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix
7) in the outer courtyard is declared in the share of Nirmohi Akhara (defendant no. 3) and they shall be entitled to possession thereof in the absence of any person with better title.
(iv) The open area within the outer courtyard (A G H J K L E F in Appendix 7) (except that covered by (iii) above) shall be shared by Nirmohi Akhara (defendant no. 3) and plaintiffs (Suit-5) since it has been generally used by the Hindu people for worship at both places.
(iv-a) It is however made clear that the share of muslim parties shall not be less than one third (1/3) of the total area of the premises and if necessary it may be given some area of outer courtyard. It is also made clear that while making partition by metes and bounds, if some minor adjustments are to be made with respect to the share of different parties, the affected party may be compensated by allotting the requisite land from the area which is under acquisition of the Government of India.
(v) The land which is available with the Government of India acquired under Ayodhya Act 1993 for providing it to the parties who are successful in the suit for better enjoyment of the property shall be made available to the above concerned parties in such manner so that all the three parties may utilise the area to which they are entitled to, by having separate entry for egress and ingress of the people without disturbing each others rights. For this purpose the concerned parties may approach the Government of India who shall act in accordance with the above directions and also as contained in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).
(vi) A decree, partly preliminary and partly final, to the effect as said above (i to v) is passed. Suit-5 is decreed in part to the above extent. The parties are at liberty to file their suggestions for actual partition of the property in dispute in the manner as directed above by metes and bounds by submitting an application to this effect to the Officer on Special Duty, Ayodhya Bench at Lucknow or the Registrar, Lucknow Bench, Lucknow, as the case may be.
(vii) For a period of three months or unless directed otherwise, whichever is earlier, the parties shall maintain status quo as on today in respect of property in dispute.”
Justice S U Khan issued the following directions:
“Accordingly, all the three sets of parties, i.e. Muslims, Hindus and Nirmohi Akhara are declared joint title holders of the property/ premises in dispute as described by letters A B C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/ Commissioner appointed by Court in Suit No.1 to the extent of one third share each for using and managing the same for worshipping. A preliminary decree to this effect is passed.
However, it is further declared that the portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree.
It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map.
It is further clarified that even though all the three parties are declared to have one third share each, however if while allotting exact portions some minor adjustment in the share is to be made then the same will be made and the adversely affected party may be compensated by allotting some portion of the adjoining land which has been acquired by the Central Government.
The parties are at liberty to file their suggestions for actual partition by metes and bounds within three months.”
Justice D V Sharma decreed the suit of the plaintiffs in the following terms:
“Plaintiffs’ suit is decreed but with easy costs. It is hereby declared that the entire premises of Sri Ram Janm Bhumi at Ayodhya as described and delineated in annexure nos. 1 and 2 of the plaint belong to the plaintiff nos. 1 and 2, the deities. The defendants are permanently restrained from interfering with, or raising any objection to, or placing any obstruction in the construction of the temple at Ram Janm Bhumi Ayodhya at the site, referred to in the plaint.”
N.6 Shebaits: an exclusive right to sue?
The role and position of a shebait
322. Courts recognise a Hindu idol as the material embodiment of a testator’s pious purpose. Juristic personality can also be conferred on a Swayambhu deity which is a self-manifestation in nature. An idol is a juristic person in which title to the endowed property vests. The idol does not enjoy possession of the property in the same manner as do natural persons. The property vests in the idol only in an ideal sense. The idol must act through some human agency which will manage its properties, arrange for the performance of ceremonies associated with worship and take steps to protect the endowment, inter alia by bringing proceedings on behalf of the idol. The shebait is the human person who discharges this role.
323. Nirmohi Akhara has instituted Suit 3 on the ground that it is the shebait of the deities of Lord Ram at the disputed site. Whether or not Nirmohi Akhara is a shebait, has a material bearing on the determination of rights inter se between the parties in Suits 3 and 5. To adjudicate on this controversy, it is necessary to analyse the position of a shebait in our law.
324. An early decision was rendered by the Privy Council in Posunno Kumari Debya v Golab Chand Baboo.210 A suit was instituted by the shebaits of an idol against their immediate predecessor to set aside two execution decrees directing the sale of the property. Analysing whether the actions of a shebait binds subsequent shebaits, the Privy Council, speaking through Justice ME Smith held:
“It would seem to follow that the person so entrusted must, of necessity, be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property, at least to as great a degree as the manager of an infant heir. If this were not so, the estate of the idol might be destroyed or wasted, and its worship discontinued for want of necessary funds to preserve and maintain them.”
The Privy Council summarised in the above extract the true function and purpose underlying the concept of a shebait. Since, the dedicated property vests in an idol in an ideal sense, the shebait is entrusted with its management. An idol cannot personally take actions required for the benefit and preservation of its property. The idol must necessarily act through a human agent and it is for this reason that the manager of the idol is conferred by law with the status of a shebait. The law recognises the legal personality of the idol to facilitate the protection of the rights and the duties owed to the idol. The natural personality of the shebait is the human agency through which the needs and concerns of the idol are fulfilled.
325. The law expounded in 1875 by the Privy Council has found resonance in a decision of this Court in 1979. In Profulla Chorone Requitte v Satya Chorone Requitte211, a question arose whether it was the founder’s intention to confer the status of a shebait upon the person designated as trustees in his will. Justice RS Sarkaria, speaking for a two judge Bench of this Court held:
“20. … Property dedicated to an idol vests in it in an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as shebait in Northern India. The legal character of a shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property.”
326. The recognition of a person or a group of persons as shebaits is a substantive conferment of the right to manage the affairs of the deity. A necessary adjunct of the status of a shebait, is the right to brings actions on the behalf of an idol and bind it and its properties to the outcomes. The purpose for which legal personality is conferred upon an idol as the material embodiment of the pious purpose is protected and realised through the actions of the human agent, that is the shebait. The shebait is entrusted with the power and the duty to carry out the purpose of the donor in respect of the idol and its properties. In the vast majority of cases, a shebait is appointed in accordance with the terms of a deed of dedication by which property is endowed to an idol. It is for the protection of this property that the law recognises either the donor or a person named in the deed of endowment as the shebait. In the absence of an expressly appointed or identified shebait, the law has ensured the protection of the properties of the idol by the recognition of a de facto shebait. Where a person is in complete and continuous management of the deity’s affairs coupled with long, exclusive and uninterrupted possession of the appurtenant property, such a person may be recognised as a shebait despite the absence of a legal title to the rights of a shebait. This will be adverted to in the course of the judgement.
327. The position of a shebait in Hindu Law is distinct from the position of a trustee in English Law. Before the Privy Council in Vidya Varuthi Thirtha v Balusami Ayyar212 the question was whether the terms “conveyed in trust” and “trustee” as they appear in Article 134 of the Limitation Act 1908 apply to properties endowed to the Mahant of a Hindu mutt. The Privy Council rejected the contention that persons managing endowed properties are in the position of trustees under English Law. Justice Ameer Ali held:
“It is also to be remembered that a “trust” in the sense in which the expression is used in English Law, is unknown in the Hindu system, pure and simple. Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind….Religious institutions, known under different names, and regarded as possessing the same “juristic” capacity, and gifts are made to them eo nomine …When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol of the institution. In no case was the property conveyed to or vested in him, nor is he a ‘trustee’ in the English sense of the term, although in view of the obligations and duties vesting on him, he is answerable as a trustee in the general sense, for mal- administration…it would follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a “trustee” to whom property has been “conveyed in trust” and who by virtue thereof has the capacity vested in him which is possessed by a “trustee” in English law.”
…
…Neither under the Hindu law nor in the Mahomedan system is any property ‘conveyed’ to a shebait or a mutavalli in the case of a dedication. Nor is any property vested in him, whatever property he holds for the idol or the institution he holds as manager with certain beneficial interest regulated by custom and usage.”
(Emphasis supplied)
328. The decision in Vidya Varuthi affirms the distinction between the position of a shebait in Hindu Law and a trustee in English Law. Unlike in the case of a trust, dedicated property does not legally vest in the shebait. The purpose for which property is dedicated to an idol is executed and protected by the shebait. Though the dedicated property does not vest in the shebait, they are responsible for managing the properties and are answerable in law for any mismanagement of the endowed properties. The shebait holds the property of an idol for the benefit of the idol. There is thus a distinction between the proprietary right of a trustee in English law and a shebait in Hindu Law. Chief Justice B K Mukherjea, in his seminal work “Hindu Law of Religious Charitable Trusts” states:
“In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of the cestui que trust. In a Hindu religions endowment, the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person, and the Shebait or Mahant is a mere manager.”213
The above distinction was affirmed by this Court in Profulla Chorone. In dealing with the concept of a shebait, Justice RS Sarkaria held: “As regards the administration of the debutter, his position is analogous to that of a trustee; yet, he is not precisely in the position of a trustee in the English sense, because under Hindu Law, property absolutely dedicated to an idol, vests in the idol, and not in the shebait. Although the debutter never vests in the shebait, yet, peculiarly enough, almost in every case, the shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct depending again on usage and custom, if not devised by the founder.
“(Emphasis supplied)
329. These observations affirm that the position of a shebait is distinct from that of a trustee in English law. The dedicated property legally vests in the idol in an ideal sense and not in the shebait. A shebait does not bring an action for the recovery of the property in a personal capacity but on behalf of the idol for the protection of the idol’s dedicated property. Ordinarily, a deed of dedication will not contain a provision for the duties of the shebait. However, an express stipulation or even its absence does not mean that the property of the idol vests in the shebait. Though the property does not legally vest in the shebait, the shebait may have some interest in the usufruct generated from it. Appurtenant to the duties of a shebait, this interest is reflected in the nature of the office of a shebait.
330. In Manohar Mukherji v Bhupendranath Mukherji214, the question before a Full Bench of the Calcutta High Court was whether shebaitship in Hindu law is property or an office to which the founder of an endowment is competent to appoint or nominate persons in any order of succession. Surveying the precedent, Justice Mukerji held:
“…I can find no authority for the proposition that the limited ownership which a shebait, in ordinary cases, exercises over debuttor property is not property in the eye of Hindu law… having regard to the rights which ordinarily attach to the office of a shebait, the office and the property of the endowment go together and that when it is a question between two persons one claiming and the other disputing a right to be the shebait, the question is a question of property…The religious office itself, of course, cannot be the object of sale, and jewels and other materials used in religious worship, to the custody of which the alleged vendor is entitled and to the careful custody of which he is bound, are by all systems of law and by Hindu law more emphatically than by another, absolutely extra commercium.”
(Emphasis supplied)
331. In addition to the duties that must be discharged in relation to the debutter property, a shebait may have an interest in the usufruct of the debutter property. In this view, shebaitship is not an office simpliciter, but is also property for the purposes of devolution.215 This view has been affirmed by this Court in Angurbala Mullick v Debabrata Mullick216. The controversy in that case was whether the appellant, as the widow of the shebait, was entitled to act as the shebait of the idol instead of the minor son of the shebait borne from his first marriage who was the respondent. It was contended that the office of shebaitship would devolve in accordance with the Hindu Women’s Right to Property Act 1937. Justice BK Mukherjea speaking for a four judge Bench of this Court accepted this contention and held:
“12…But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception of shebaiti both the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property.”
The Court held that a shebait has a beneficial interest in the usufruct of the debutter property. This beneficial interest is in the form of a proprietary right. Though the role of the shebait is premised on the performance of certain duties for the idol and the benefits are appurtenant, neither can be separated from the other. Thus, office and property are both blended in shebaitship, the personal interest of a shebait being appurtenant to their duties.217
Pujaris
332. A final point may be made with respect to shebaits. A pujari who conducts worship at a temple is not merely, by offering worship to the idol, elevated to the status of a shebait. A pujari is a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted the ceremonies for a long period of time. Thus, the mere presence of pujaris does not vest in them any right to be shebaits. In Gauri Shankar v Ambika Dutt218, the plaintiff was the descendant of a person appointed as a pujari on property dedicated for the worship of an idol. A suit was instituted for claiming partition of the right to worship in the temple and a division of the offerings. A Division Bench of the Patna High Court held that the relevant question is whether the debutter appointed the pujari as a shebait. Justice Ramaswami held:
“7…It is important to state that a pujari or archak is not a shebait. A pujari is appointed by the Shebait as the purohit to conduct the worship. But that does not transfer the rights and obligations of the Shebait to the purohit. He is not entitled, to be continued as a matter of right in his office as pujari. He is merely a servant appointed by the Shebait for the performance of ceremonies. Where the appointment of a purohit has been at the will of the founder the mere fact that the appointees have performed the worship for several generations, will not confer an independent right upon the members of the family so appointed and will not entitle them as of right to be continued in office as priest…”
333. A shebait is vested with the authority to manage the properties of the deity and ensure the fulfilment of the purpose for which the property was dedicated. As a necessary adjunct of this managerial role, a shebait may hire pujaris for the performance of worship. This does not confer upon the appointed pujaris the status of a shebait. As appointees of the shebait, they are liable to be removed from office and cannot claim a right to continue in office. The distinction between a shebait and a pujari was recognised by this Court in Sree Sree Kalimata Thakurani of Kalighat v Jibandhan Mukherjee.219 A suit was instituted under Section 92 of the Code of Civil Procedure 1908 for the framing of a scheme for the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani and her associated deities. A Constitution Bench of this Court, speaking through Justice JR Mudholkar held:
“…It is wrong to call shebaits mere pujaris or archakas. A shebait as has been pointed out by Mukherjea J. (as he then was), in his Tagore Law Lectures on Hindu Law of Religious and Charitable Trusts, is a human ministrant of the deity while a pujari is appointed by the founder or the shebait to conduct worship. Pujari thus is a servant of the shebait. Shebaitship is not mere office, it is property as well.”
334. A pujari is appointed by the founder or by a shebait to conduct worship. This appointment does not confer upon the pujari the status of a shebait. They are liable to be removed for any act of mismanagement or indiscipline which is inconsistent with the performance of their duties. Further, where the appointment of a pujari has been at the will of the testator, the fact that appointees have performed the worship for several generations does not confer an independent right upon the appointee or members of their family and will not entitle them as of right to be continued in office as priests. Nor does the mere performance of the work of a pujari in and of itself render a person a shebait.
An exclusive right to sue?
335. The position of a shebait is a substantive position in law that confers upon the person the exclusive right to manage the properties of the idol to the exclusion of all others. In addition to the exclusive right to manage an idol’s properties, the shebait has a right to institute proceedings on behalf of the idol. Whether the right to sue on behalf of the idol can be exercised only by the shebait (in a situation where there is a shebait) or can also be exercised by the idol through a ‘next friend’ has been the subject of controversy in the proceedings before us. The plaintiff in Suit 3 – Nirmohi Akhara contends that the Nirmohis are the shebaits of the idols of Lord Ram at the disputed site. Mr S K Jain, learned Senior Counsel appearing on behalf of Nirmohi Akhara, urged that absent any allegation of maladministration or misdemeanour in the averments in the plaint in Suit 5, Devki Nandan Agarwal could not have maintained a suit on behalf of the idols as a next friend. Mr Jain placed significant reliance on the contention that the plaint in Suit 5 does not aver any mismanagement by the Nirmohis. Mr S K Jain urged that though the plaintiffs in Suit 5 (which was instituted in 1989) were aware of Suit 3 which was instituted by Nirmohi Akhara (in 1959) claiming as a shebait, the plaint in Suit 5 does not challenge the position of Nirmohi Akhara as a shebait. Consequently, Nirmohi Akhara urged that a suit by a next friend on behalf of the idol is not maintainable. The argument that Nirmohi Akhara is the shebait of the idols and is consequently vested with the exclusive right to bring an action on behalf of the idols of Lord Ram was also supported by Dr Dhavan, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 4. He urged that despite his submission that Suit 3 was barred by limitation, a dismissal of that suit only extinguished the remedy of Nirmohi Akhara to file a suit for possession but did not extinguish the Nirmohi’s rights as shebaits. Therefore, in Dr Dhavan’s submission, Nirmohi Akahara continued to be shebaits and possess an exclusive right to sue on behalf of the idols of Lord Ram even in 1989. This, it is urged, renders Suit 5 not maintainable.
336. The challenge to the maintainability of Suit 5 is premised on the contention that only a shebait can sue on behalf of the idol. The question of who can sue on behalf of the idol arises due to the unique nature of the idol. The idol is a juristic person and the owner of the debutter property, but (as we have discussed earlier) only in an ideal sense. In law, the idol is capable of suing and being sued in its own name. However, for all practical purposes any suit by the idol must necessarily be brought by a human actor. In Maharaja Jagadindra Nath Roy Bahadur v Rani Hemanta Kumari Debi220 the plaintiff instituted a suit as shebait of an idol alleging dispossession of certain lands by the defendant. The defendant resisted the suit on the ground of limitation. The shebait alleged that at the time of the dispossession, he was a minor and therefore the period of limitation did not begin against him until he attained majority. The Privy Council, speaking through Sir Arthur Wilson held:
“But assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, not in the idol. And in the present case the right to sue accrued to the Plaintiff when he was under age. The case therefore falls within the clear language of sec. 7 of the Limitation Act which says that: “if a person entitled to institute a suit … be, at the time from which the period of limitation is to be reckoned, a minor,” he may institute the suit after coming of age within a time, which in the present case would be three years.”
(Emphasis supplied)
The Privy Council examined whether, at the time of the dispossession, limitation began running against the shebait. In doing this, the Privy Council located the right to sue as vested in the shebait and not the idol. Ultimately, the Privy Council held that the suit was not barred by limitation as the shebait was a minor at the time of the dispossession. Thus, it was not relevant whether or not limitation ran against the deity’s right to sue as such right vested in the shebait.
337. Ordinarily, the right to sue on behalf of the idol vests in the shebait. This does not however mean that the idol is deprived of its inherent and independent right to sue in its own name in certain situations. The property vests in the idol. A right to sue for the recovery of property is an inherent component of the rights that flow from the ownership of property. The shebait is merely the human actor through which the right to sue is exercised. As the immediate protector of the idols and the exclusive manager of its properties, a suit on behalf of the idol must be brought by the shebait alone. Where there exists a lawfully appointed shebait who is able and willing to take all actions necessary to protect the deity’s interests and to ensure its continued protection and providence, the right of the deity to sue cannot be separated from the right of the shebait to sue on behalf of the deity. In such situations, the idol’s right to sue stands merged with the right of the shebait to sue on behalf of the idol. This understanding is summarised by Justice B K Mukherjea in “The Hindu Law of Religious and Charitable Trusts” in the following manner:
“This decision [in Jagadindra Nath], therefore, establishes three things: –
(1) That the right of a suit in respect of the deity’s property is in the Shebait;
(2) this right is a personal right of the Shebait which entitles him to claim the privilege afforded by the Limitation Act; and
(3) the Shebait can sue in his own name and the deity need not figure as a plaintiff in the suit, though the pleadings must show that the Shebait is suing as such.”221
338. A suit by a shebait on behalf of an idol binds the idol. For this reason, the question of who can sue on behalf of an idol is a question of substantive law. Vesting any stranger with the right to institute proceedings on behalf of the idol and bind it would leave the idol and its properties at the mercy of numerous individuals claiming to be ‘next friend’. Therefore, the interests of the idol are protected by restricting and scrutinising actions brought on behalf of the idol. For this reason, ordinarily, only a lawful shebait can sue on behalf of the idol. When a lawful shebait sues on behalf of the deity, the question whether the deity is a party to the proceedings is merely a matter of procedure. As long as the suit is filed in the capacity of a shebait, it is implicit that such a suit is on behalf of and for the benefit of the idol.
A suit by a worshipper or person interested
339. There may arise a situation where a shebait has been derelict in the performance of duties, either by not taking any action or by being complicit in the wrongful alienation of the endowed property. In such a situation, where a suit is instituted for the recovery of the deity’s property, the action is against both the shebait and the person possessing or claiming the property in a manner hostile to the deity. The remedy for an action against mismanagement simpliciter by a shebait can be found in Section 92 of the Civil Procedure Code 1908. However, where an action against a stranger to the trust is contemplated, the remedy is not a suit under Section 92 of the Civil Procedure Code 1908 but a suit in general law.
340. In Vemareddi Ramaraghava Reddy v Konduru Seshu Reddy222, the plaintiffs accused the defendants, who were the managers of the temple and its properties, of mismanagement. Subsequently, a compromise decree was executed between the defendants and the Hindu Religious Endowments Board which inter alia declared the temple properties as the personal property of the defendants. The plaintiffs sought a declaration under Section 42 of the Specific Relief Act 1963 that the provision of the compromise decree stating that the temple properties were the absolute personal properties of the defendant was not binding on the temple. The defendants resisted this contention on the ground that the plaintiffs had no legal interest in the temple or temple property and were mere worshippers whose suit could not bind the temple. Justice V Ramaswami, speaking for a two judge Bench of this Court held:
“13. … As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a judicial person capable of holding property, it is only in an ideal sense that the property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait but where, however, the Shebait is negligent or where the Shebait himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is worshipper a of the deity or as a prospective Shebait is legally interested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend, nominated by the court…”
(Emphasis supplied)
341. A necessary adjunct of managing of the temple properties is the right to sue for recovery of the said properties. Ordinarily a shebait alone will be entitled to bring a suit on behalf of the idol. In addition to being convenient and providing immediate recourse for the idol, it also provides a valuable check against strangers instituting suits, the outcomes of which may adversely impact the idol without the knowledge of the idol or the shebait. But there may be cases where the conduct of a shebait is in question. In certain cases, where the shebait itself is negligent or sets up a claim hostile to the idol, it is open for a worshipper or a next friend interested in protecting the properties of the idol to file a suit to remedy the situation. In the above case, by entering into the compromise decree declaring the temple properties as personal properties of the defendant shebaits, the defendants set up a title contrary to the title of the idol itself. This Court held that it was hence permissible for the plaintiffs, who were worshippers, to maintain a suit invalidating the compromise decree.
342. However, in Vemareddi Reddy, the suit was not instituted on behalf of the deity. The suit was instituted in a personal capacity by the worshipper seeking a declaration that the property in question was debutter property. In this context, the court held:
“11. … If a shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession. Worshippers of a temple are in the position of cestuui que trustent or beneficiaries in a spiritual sense. … Since worshippers do not exercise the deity’s power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the alienation is not binding on the deity…”
(Emphasis supplied)
The significance of the distinction between suing on behalf of the deity and the institution of a suit in a personal capacity for the benefit of the deity will be adverted to shortly.
343. In Bishwanath v Sri Thakur Radha Ballabhji223 a next friend of the idol challenged the alienation of its properties by the defendant shebait. One of the defences taken by the shebait was that the next friend was not capable of maintaining a suit on behalf of the deity. Justice Subba Rao, speaking for a three-judge Bench of this Court affirmed the principle that ordinarily a shebait possesses the exclusive right to sue on behalf of the idol:
“9. Three legal concepts are well settled: (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. It has also been held that persons who go in only for the purpose of devotion have, according to Hindu law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage…”
The learned judge then evaluated when persons other than a shebait may be entitled to maintain a suit on behalf of the deity:
“10. The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait’s duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of the Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment…”
(Emphasis supplied)
344. The decision reiterates the holding in Vemareddi Reddy that where a shebait refuses to act for the benefit of the idol, or where the shebait’s actions are prejudicial to the interest of the idol, an alternative method must be provided for protecting the idol’s interests. In such cases, a next friend interested in the protection of the endowed properties is vested with the right to institute a suit. Where an action prejudicial to the interests of the idol is taken by the shebait, it is unlikely that the shebait will institute a suit challenging its own actions. Therefore, it becomes necessary to confer on a next friend the right to bring an action in law against the shebait and the stranger who threatens the idol’s interests.
345. It is important to note that unlike in Vemareddi Reddy, this Court in Bishwanath permitted worshippers to sue on behalf of the idol. The suit in Bishwanath was not instituted by a worshipper in their personal capacity, but rather as a representative of the idol to the exclusion of the shebait. The next friend stepped into the shoes of the shebait for the limited purpose of the litigation.
346. The position in law with respect to when a worshipper may institute proceedings is settled. A worshipper can institute a suit to protect the interests of the deity against a stranger where a shebait is negligent in its duties or takes actions that are hostile to the deity. The question whether the remedy available to the worshipper is a suit in a personal capacity or a suit on behalf of the idol (as next friend) is one which must be answered. The suit in Vemareddi Reddy was a suit filed by worshippers in their personal capacity and the court had no occasion to determine whether a suit by a next friend on behalf of the idol itself would be maintainable. However, given the express observations that a worshipper cannot exercise the deity’s right to sue, this matter must be considered.
347. In this regard, Dr Dhavan brought to our notice the separate opinion of Justice Pal in Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila Thakur224, as a member of a Division Bench of the Calcutta High Court. The case arose from a rather unique factual background. A suit was instituted by Anupama, who was not the shebait but the daughter of the then shebait. Anupama sought to stay the sale of certain property on the ground that the property was absolute debutter property. Anupama’s suit was subsequently dismissed and fresh proceedings were instituted by the shebaits proper. Justice Nasim Ali and Justice Pal both held that Anupama was not a shebait and thus the dismissal of her suit was irrelevant for the purposes of deciding the fresh suit. However, Justice Pal further observed:
“Persons having individual rights under such endowments can bring suits to enforce such individual rights by an ordinary suit in their own name without being obliged to bring a suit in the name of the idol. This right reserved to the worshippers sufficiently safeguards the interest of the worshippers or other persons interested in the debutter. At the same time it obviates the risk of jeopardising the interests of the idol by allowing it to be affected by the intermeddling of persons whose fitness has never been enquired into and adjudicated upon.”
(Emphasis supplied)
Justice Pal opines that even in situations where the shebait acts contrary to the interests of the idol, a worshipper cannot sue on behalf of the idol, but only in a personal capacity. This stems from the concern that persons whose fitness or bona fides has not been enquired into or adjudicated upon by the courts may be able to adversely bind the idol and its properties. In this view, the worshipper does not sue on behalf of the deity, but may, at the very highest, obtain a declaratory decree challenging the shebait’s actions as not binding on the deity.
348. Where a shebait acts prejudicially to the deity’s interests, there thus exist two views on the remedies available to the interested worshipper. The position taken by this Court in Bishwanath is that a worshipper can sue as a next friend on behalf of the deity. As next friend, the worshipper directly exercises the deity’s right to sue. The alternative view taken by Justice Pal in Tarit Bhushan Rai and as observed by this Court in Vemareddi Reddy is that a worshipper can file a suit in a personal capacity to protect the deity’s interests but cannot sue directly on behalf of the deity although the suit may be for the benefit of the deity. In this view, the deity is not bound by the suit of the worshippers unless the remedy provided is in rem in nature. The matter raises two questions: First, is a suit filed by a worshipper in a personal capacity a sufficient and expedient method to protect the interests of the deity? Second, does allowing a next friend to sue on behalf of the deity without establishing the bona fide intentions and qualifications of the next friend put the deity’s interest at risk?
349. A suit by a worshipper in their personal capacity may be an appropriate remedy in certain cases. For example, where a shebait denies worshippers access to the idol, a suit by the worshipper in a personal capacity to grant access to the idol may constitute a suitable remedy against the shebait. A further benefit of confining the suits of worshippers to suits filed in a personal capacity is that in cases concerning the recovery of property, a suit by a worshipper in a personal capacity does not raise the question as to whom the possession of the land would be given. However, where a suit is filed by a next friend on behalf of the deity itself, a problem arises: in a suit for the recovery of property on behalf of the idol, the court cannot deliver possession of the property to the next friend. The next friend is merely a temporary representative of the idol for the limited purposes of the individual litigation. Where a worshipper can only sue in their personal capacity, the question of the delivery of possession does not arise.
350. A suit by a worshipper in their personal capacity cannot however canvas the range of threats the idol may face at the hands of a negligent shebait and it may be necessary for the court to permit the next friend to sue on behalf of the idol itself to adequately protect the interests of the idol. For example, where a shebait fails to file a suit for possession on behalf of a deity, a suit by a worshipper in their personal capacity is inadequate. Rather, what is required is a suit by a next friend on behalf of the idol for the recovery of possession of the property. It is true that possession will not be delivered to the next friend. However, the court can craft any number of reliefs, including the framing of a scheme upon an application by the Advocate General or two persons under Section 92 of the Civil Procedure Code 1908225, to ensure that the property is returned to the idol. Where the inaction or mala fide action of the shebait has already been established, such a scheme may be the appropriate remedy, however this will necessarily depend on the facts and circumstances of every case.
351. In view of these observations, it is apparent that where the interests of the idol need to be protected, merely permitting interested worshippers to sue in their personal capacity does not afford the deity sufficient protections in law. In certain situations, a next friend must be permitted to sue on behalf of the idol – directly exercising the deity’s right to sue. The question of relief is fundamentally contextual and must be framed by the court in light of the parties before it and the circumstances of each case.
352. This, however, brings us to the second question whether allowing a next friend to sue on behalf of the idol puts the idol at risk. The idol and its properties must be protected against the threat of a wayward ‘next friend’. Where the shebait acts in a mala fide manner, any person claiming to be a ‘next friend’ may sue. Such a person may in truth have intentions hostile to the deity and sue under false provenance. Even a well-intentioned worshipper may sue as a next friend and purely due to financial constraints or negligence lose the suit and adversely bind the deity. A solution offered by Justice Pal in Tarit Bhushan Rai, and urged by Dr Dhavan in the present proceedings, is that only court appointed next friends may sue on behalf of the idol. No doubt this would satisfy the court that the next friend is bona fide and can satisfactorily represent the deity.
353. It is true that unless the fitness of the next friend is tested in some manner, an individual whose bona fides has not been determined may represent and bind the idol to its detriment. However, it would be unnecessarily burdensome to require every next friend to first be appointed by a court or for a court to find a disinterested person to represent the deity. The deity’s interests would be sufficiently protected if, in cases where the bona fides of the next friend are contested by another party, the court substantively examines whether the next friend is fit to represent the idol. In an appropriate case, the court can do so of its own accord where it considers it necessary to protect the interest of the deity. In the absence of any objection, and where a court sees no deficiencies in the actions of the next friend, there is no reason why a worshipper should not have the right to sue on behalf of the deity where a shebait abandons his sacred and legal duties. Very often, worshippers are best placed to witness and take action against any maladministration by a shebait. Therefore, where a shebait acts adverse to the interests of the deity, a worshipper can, as next friend of the deity, sue on behalf of the deity itself, provided that if the next friend’s bona fides are contested, the court must scrutinise the intentions and capabilities of the next friend to adequately represent the deity. The court may do so of its own accord, ex debito justitae.
The competence of the third plaintiff
354. In the present proceedings, both Mr S K Jain and Dr Dhavan urged that the third plaintiff in Suit 5 was not fit to represent the first and the second plaintiffs. Suit 5 was instituted in 1989 by Deoki Nandan Agarwal, a Vaishnavite. The principal deity of Vaishnavas is Lord Vishnu. The Vaishnava sect worships Lord Ram as one of the many avatars of Lord Vishnu. Deoki Nandan Agarwal was appointed as next friend to the first and the second plaintiffs by an order of the Civil Judge dated 1 July 1989.
355. A Mohd. Hashim filed a civil miscellaneous application226 challenging the appointment of Shri Deoki Nandan Agarwal. The relevant enquiry is whether any substantial contest was raised to the bona fides of the third plaintiff to represent the first and second plaintiff. The application stated:
“5. That the alleged plaintiffs 1 and 2, taking into account the plaint averments to be gospel truth are not legal persons, and, as such, suit being not for the leg 0000al person the question of appointment of next friend could not be considered and without prima facie satisfying that the suit has been filed by a legal person the question of appointment of next friend could not be considered.
8. That for appointment of next friend there has to be an averment that the alleged next friend has got no interest adverse to the interest of the next person for whom he is being appointed next friend and in the absence of any averment regarding the same and without satisfying about absence of adverse interest by the court the order appointing plaintiff no. 3 as a next friend is bad and illegal.”
(Emphasis supplied)
In para 5 of the application, the applicant questioned the juristic personality of the first and the second plaintiff. It was averred that absent an established juristic person, the question of appointing a next friend did not arise. Be that as it may, the averment cannot be read as challenging the bona fides of the third plaintiff. In para 8, the applicant stated that any application for appointment of a next friend must be accompanied by a specific averment that there is no interest adverse to the deity the person seeks to represent. Further, the applicant must satisfy the court of the absence of an adverse interest. It is true that where the fitness of the next friend is in dispute the court should scrutinise the bona fides of the next friend. However, a bare allegation that is not substantiated with any evidence does not constitute a contest to the bona fides of the next friend. Barring a stray statement in para 8, the application did not substantiate or raise contest to the bona fides of the third plaintiff.
356. Deoki Nandan Agarwal passed away on 8 April 2002 and an application was made to the court to allow Dr T P Verma to be appointed as next friend of the first and the second plaintiffs. By an order dated 25 April 2002, Dr T P Verma was appointed as next friend by the Allahabad High Court. Subsequently, an application was filed to allow Triloki Nath Pande to replace Dr T P Verma as next friend of the first and the second plaintiffs. This application was dismissed by the Allahabad High Court. On appeal, by an order dated 8 February 2010, this Court held:
“3. Mr. K.N. Bhat, learned senior counsel appearing on behalf of the appellants very earnestly argues that instead of Dr. Thakur Prsad Verma, Mr. Triloki Nath Pande be appointed as next friend of appellant-plaintiff Nos. 1 & 2 under the provisions of Order XXXII Rule 8 of Code of Civil Procedure since Dr. Verma has serious health problems. He futher points out that insofar as the costs already incurred are concerned, the present next friend Dr. Verma shall give an undertaking to the High Court indicating therein that he would be responsible for the costs already incurred.
4. The other side has no objections for this arrangement. In that view, it is not necessary for us to examine the correctness or otherwise of the impugned order passed by the High Court. If the aforesaid undertaking is given and the willingness of Mr. Triloki Nath Pandey is indicated to the High Court, in that case, Mr. Triloki Nath Pandey shall act as a next friend of appellant-plaintiff Nos. 1 and 2 subject to the undertaking given by Dr. Verma.”
By the order of this Court, Triloki Nath Pande was permitted to act as next friend of the first and the second plaintiffs. No objection was raised to the appointment of Triloki Nath Pande in the proceedings before this Court. There was no reason for this Court to examine the correctness of the order of the High Court dismissing the application to permit TP Verma to retire from acting as the next friend. The Allahabad High Court subsequently appointed Triloki Nath Pande as next friend by an order dated 18 March 2010.
357. Where the fitness of the next friend is in dispute the court should scrutinise the bona fides of the next friend. However, in the present case, this enquiry is not necessary as the third plaintiff in Suit 5 has been appointed as next friend of the first and the second plaintiffs under the orders of the court. With the appointment of Triloki Nath Pande, this Court has applied its mind to the question and permitted Triloki Nath Pande to act as next friend of the first and the second plaintiffs. Given the scrutiny that the appointment of the next friend has been subject to in the present proceedings there is no merit in the argument that the third plaintiff in Suit 5 is not fit to institute a suit as the next friend of the first and the second plaintiffs.
Nirmohi Akhara and shebaiti rights
358. Where there exists an express deed of dedication identifying the shebait, the position in law with respect to who can sue on behalf of an idol is as follows:
(i) The right to sue vests exclusively in the lawfully appointed shebait; however,
(ii) Where the shebait acts in a manner negligent or hostile to the interests of the idol through express action or inaction, any person who is interested in the endowment may institute a suit on behalf of the idol; and (iii) The exact nature of the interest possessed by the next friend, and whether the next friend is bona fide are matters of substantive law. If contested, it must be adjudicated upon by the court.
The maintainability of Suit 5 hinges on the question whether Nirmohi Akhara were shebaits, and whether they have acted in a manner prejudicial to the interests of the idol. It is to this that issue we must now turn.
During the oral arguments before this court, a question was put to Mr Jain whether by challenging the maintainability of the idol’s suit, Nirmohi Akhara have set up a claim hostile to the interests of the idol. In response, Mr S K Jain submitted to this Court a statement conditionally modifying the position of the Nirmohi Akhara with respect to the maintainability of Suit 5 stating that the Nirmohi Akhara would not press the issue of maintainability in suit 5 provided that the plaintiffs in Suit 3 do not question the shebaiti rights of Nirmohi Akhara. It was submitted that Nirmohi Akhara can independently maintain their suits as shebaits.
359. The statement by Nirmohi Akhara does not alter its claim that it is the shebait of the idols of Lord Ram. It merely stipulates that, in the event that the plaintiffs in Suit 5 choose to recognise Nirmohi Akhara as the shebait of the idols, it will no longer challenge the maintainability of Suit 5. Such a position is untenable in a court of law. Nirmohi Akhara has consistently taken the stand that the Nirmohis are shebaits of the idols of Lord Ram. If this Court finds that they are the shebait of the idols, they alone can sue on behalf of the idols and Suit 5 instituted by a next friend would not be maintainable, absent an adjudication by this Court that the Nirmohis have acted contrary to the interests of the idol.
360. The present case does not concern an express deed of dedication identifying a shebait. Rather, it is the submission of Nirmohi Akhara that by virtue of their long-standing presence at the disputed site, and their exercise of certain actions with respect to the idol, they are shebaits de facto. Further, the unique nature of the present proceedings is that the suit instituted by the next friend, thirty years after the suit by Nirmohi Akhara, is being adjudicated upon along-side with the suit filed by the alleged shebait, Nirmohi Akhara. The consequence of this is that when the suit of the next friend was instituted in 1989, no determination had yet been made that Nirmohi Akhara was a shebait.
361. The present proceedings are of a composite nature, hence the question of the maintainability of Suit 5 must be answered in a staggered manner. The first question is whether the Nirmohi Akahara are the de facto shebaits of the idols of Lord Ram. If this is answered in the affirmative, the second question that arises is whether Nirmohi Akhara have acted in a manner prejudicial to the interest of the idol. If the Nirmohi Akhara are found to be the de facto shebaits and have not acted prejudicially, Suit 5 is not maintainable as it is the shebait that enjoys the exclusive right to sue on behalf of the deity. Alternatively, if the Nirmohi Akhara are found not to be de facto shebaits of the idols, or are found to have acted prejudicially with respect to the idols, the suit by the next friend is maintainable. With this, we turn to the question whether Nirmohi Akhara are shebaits de facto.
Rights of a de facto shebait to sue
362. The rights of a de facto shebait to institute suits on behalf of the deity can be traced to two early decisions of the Privy Council: Mahant Ram Charan Das v Naurangi Lal227 and Mahadeo Prasad Singh v Karia Bharti228. In Mahant Ram Charan Das, the Mahant of a Paliganj mutt executed a lease for 70 acres of the mutt’s land and subsequently executed a sale deed subject to the lease. Upon his death, another person claiming to be Mahant took possession and subsequently surrendered all his rights by way of a registered sale deed to the plaintiff who was the Mahant of another mutt (of which the Paliganj mutt was a subordinate). The plaintiff instituted a suit claiming that there was no necessity warranting the execution of the lease deed and the subsequent sale deed. On the question of maintainability of the suit at the behest of the plaintiff, the Privy Council, speaking through Lord Russell, held:
“…Their Lordships, however are not now concerned with any question of title because both the Courts below have found that the plaintiff is the person in actual possession of the Paliganj mutt and as such entitled to maintain a suit to recover property not for his own benefit but for the benefit of the mutt.”
363. In Mahadeo Prasad Singh, a village which formed part of the estate annexed to a mutt was sold by the Mahant in 1914. Upon his death in 1916, the suit in question was instituted in 1926 challenging the alienation by a person alleging to be the Mahant of the mutt. One objection to the suit was that the respondent was not entitled to maintain the suit as he was neither the chela of the previous Mahant, nor was he entitled to be the Mahant in any other capacity. Rejecting this contention, the Privy Council, speaking through Sir Shadi Lal held:
“There can be little doubt that Karia has been managing the affairs of the institutions since 1904, and has since the death of Rajbans been treated as its mahant by all the persons interested therein. The property entered in the revenue records in the name of Rajbans was, on his death, mutated to Karia, and it is not suggested that there is any person who disputes his title to the office of the mahant. In these circumstances their Lordships agree with the High Court that Karia was entitled to recover for the benefit of the math the property which belonged to the math and is now wrongly held by the appellants. They are in no better position than trespassers. As observed by this Board in 1933 PC 75 (1), a person in actual possession of the math is entitled to maintain a suit to recover property appertaining to it, not for his own benefit, but for the benefit of the math.”
The Privy Council noted the following: (i) Karia was recognised as a mahant by the villagers; (ii) The revenue record reflected Karia’s name; and (iii) It was not suggested that there existed any dispute to his title to the office of the Mahant. It is on the basis of these considerations that the Privy Council held that the rights exercised by Karia were in the nature of a Mahant. The considerations outlined above weighed with the Privy Council in its analysis of whether the rights exercised were in the nature of those exercised by a Mahant.
364. Though both the decisions of the Privy Council adverted to above were in the context of the right of a Mahant to bring an action on behalf of a mutt, the position in law that a de facto Mahant is entitled to institute an action on behalf of the mutt for its benefit has equally been applied to a de facto shebait of an idol and its properties. In Panchkari Roy v Amode Lal Burman229, Ramdas Mohunt, by virtue of a will, dedicated property to certain idols and appointed his widow as the manager of the property till the attainment of the age of majority of their daughter, at which point, she would take over as a shebait. The widow sold the property as secular property and the daughter, upon attaining majority, alleged that though the property was secular, it devolved upon her by the virtue of the will. She sold the property to another party. The plaintiff, claiming to be the religious preceptor of the debutter instituted a suit alleging that the idols were handed over to him. The question before the court was whether the plaintiff, who was not a member of the family or named in the will, could validly institute a suit in a private endowment. The relevant question before the Calcutta High Court was whether the plaintiff was a de facto shebait. Justice BK Mukherjea (as he then was) held:
“The Judicial Committee in the case of Ram Chandra v. Nourangi Lal (4) and again in Mahadeo Prosad Singh v. Karia Bharti (5) laid down that a person in actual possession of the Math is entitled to maintain a suit to recover property appertaining to it not for his own benefit but for the benefit of the Math…There may be and, in fact there is difference between a Math and an idol but I do not see any reason why a de facto shebait cannot be allowed to sue in case of family endowment or private debottar….In order to make a person a de facto shebait it is necessary, however, that he should be in actual possession of the office and the debottar estate….The de facto shebait would, in my opinion, be one who exercises all the functions of a shebait and is in possession of the debottar property though the legal title may be lacking.”
(Emphasis supplied)
365. Where a person claims to be a shebait despite the lack of a legal title, the relevant enquiry before the Court is whether the person was in actual possession of the debutter property and was exercising all the rights of a shebait. The paramount interest in the protection of the debutter property underlines the recognition of a de facto shebait. Where there is no de jure shebait, the court will not countenance a situation where a bona fide litigant who has exercised all the managerial rights over the debutter property cannot be recognised in law as the protector of the property. It is only for the paramount interest of the institution that the right to sue is conceded to persons acting as managers though lacking a legal title of a manager.
366. This rationale was outlined by the Madras High Court in Subramania Gurukkal v Abhinava Poornapriya A Srinivasa Rao Sahib230. The Court of Wards dismissed the ‘archaka’ in possession of lands belonging to a temple on the ground that he had failed to render services and account for certain charges made on the property. A suit was then filed by the Jagirdar represented by his next friend the manager of the estate under the Court of Wards as a trustee of the temple to recover possession. The order of dismissal was passed after the death of the previous Jagirdar. It is after the suit was instituted and before the decision in the suit that a notification was passed making the new Jagirdar a ward under the Act. The question arose as to whether the order of dismissal was validly passed. The Court held that where the successor of the Jagirdar took no step to assume control, the Court of Wards assumed the position of a de facto trustee. Justice Wodsworth held:
“It is the duty of the Court to protect trust property from misappropriation and diversion from the objects to which it was dedicated. When trust property is without a legal guardian owing to defects in the machinery for the appointment of a trustee or owing to the unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being in charge of the institution and actively controlling its affairs in the interests of the trust should not be entitled, in the absence of any one with a better title to take those actions which are necessary to safeguard the objects of the trust.”
367. This observation of the Madras High Court merits a closer look for two reasons: First, the Court held that the right to bring an action to protect the interest of the trust vests in a person who is ‘recognised as being in charge of the institution and actively controlling its affairs’. A single or stray act of management does not entitle a person to be determined as a de facto shebait. The relevance of this observation shall be considered shortly. Second, the de facto shebait is vested with a right to bring an action only in the absence of a person with a better title i.e. the de jure shebait. With the above conditions, the Court held:
“…I am moreover inclined to think, quite apart from these statutory provisions, that a de facto trustee of a Hindu temple in actual management of that temple and acting bona fide in the interests of the institution can validly pass an order dismissing a temple servant or officer, provided that the dismissal is for good grounds and that the procedure is one to which no objection can be taken…There is moreover no doubt as to the capacity of a de facto trustee in possession and management of a temple to bring a suit for the recovery of temple lands.”
In this view, a person in actual management and acting bona fide for the interests of the institution can bring a claim for the recovery of temple property as a de facto shebait.
368. It is relevant here to advert in some detail to the Full Bench judgment of the Madras High Court in Sankarnarayanan Iyer v Sri Poovananathaswami Temple231. In this case, the de jure trustee alienated the properties of a temple and his whereabouts were not known. The succeeding trustee appointed under a compromise decree passed by the court instituted a suit for the recovery of possession of the suit property as the property of the temple. It was contended that independent of the compromise decree, he was vested with the right to institute a suit for the protection of the debutter properties as the de facto manager. Chief Justice P V Rajamannar held:
“In the case of these endowments the so-called trustee is not really a trustee, in the technical sense, in whom the property is vested. He is really a manager (even in cases where he also has a beneficial interest in the usufruct) and the title always is vested in the idol or the institution. In either case, the analogy is to that of an individual having a manager to carry on the administration of his affairs and properties. Viewed in this light, the position reduces itself to this. In some cases, the manager has a rightful claim to the office of manager, in other cases, his only claim is that he is in actual possession of the office. “De facto” means, “by the title of possession”, in antithesis to “de jure” i.e., “by the title of right”. So long as the action is for the benefit of the real owner, namely, the idol or the mutt, and the person bringing the action is the only person who is in management of the affairs of the idol or the mutt for the time being, there is no reason why such person should not be allowed to maintain the action on behalf of the idol or the mutt.”
(Emphasis supplied)
The above observations clarify that a person claiming to be de facto shebait must be in exclusive possession of the debutter property and must be the only person in management of the property.
369. In his separate opinion, Justice Viswanatha Sastri clarified the grounds of challenge to the exercise of the power of management by a de facto shebait in the following terms:
“…If a de facto trustee is guilty of any breach of trust, he can be removed like a de jure trustee. The law fixes him with the responsibility for the proper administration of the trust and also gives him the power to act on behalf of and in the interests of the trust, until a lawful trustee emerges…A person who asserts his own title to the property of a religious endowment, who does not sue as a trustee or manager of the endowment and who claims to recover the property for himself and not for the trust, can never be allowed to sue as a de facto trustee. He is entirely in the position of a trespasser so far as the trust is concerned and cannot be considered to be one who has taken upon himself the duties and obligations of a trustee.”232
Consistent with the jurisprudence on the rights of a shebait with respect to the properties of an endowment, a de facto shebait is entrusted with the power and the duty to carry out the purpose of the debutter in respect of the idol and its properties. Though the shebait may have an interest in the usufruct of the debutter property, the de facto shebait is not vested with an independent right of title over the debutter property. Thus, where a de facto shebait raises an independent claim to the debutter property to the idol, it assumes the position of a trespasser and no action at its behest is maintainable. A claim raised by a shebait adverse to the idol defeats the very purpose for which shebaits are vested with the right to manage the idol and its properties.
370. It is of crucial importance to advert to the standard laid by the learned judges in their separate opinions as to when a person may be deemed to be a de facto shebait. Justice Viswanatha Sastri held:
“A fugitive or isolated act of a person with regard to the property of a religious endowment would not make him a de facto trustee. One swallow does not make a summer. There must be a continuous course of conduct, the length of the same depending on the facts and circumstances of the case. The possession of the office or the institution which is the object of the trust and the exercise of the rights pertaining to the office, would be important indicia of a de facto trusteeship.”
(Emphasis supplied)
Similarly, Justice Raghava Rao held:
“I must confess, however, that I should have experienced greater difficulty in the determination of the point in controversy… whence comes the right of the de facto manager to sue? There again, where and how are we to draw a line between a manager de facto and a manager ad hoc exercising isolated acts on particular occasion? I respectfully agree with my learned brother Viswanatha Sastri, J. in his picturesque observation that one swallow does not make a summer; but the practical question still remains, how many do?…how best to make sure that the person suing on behalf of the institution does not enter into improper agreements or compromises pre-decretal and post-decretal. Or walk away with the monies representing the fruits of a particular decree obtained on behalf of the institution? If that is not possible, is it any consolation that at the hands of a de jure manager too the institution may sustain sometimes a similar detriment?”
371. All the above observations are of crucial importance. For, in Sankarnarayanan Iyer and in the consistent jurisprudence of our courts thereafter,233 it has been held that a stray act or intermittent acts of management do not vest a person with the rights of a de facto shebait. Absent a deed of dedication, the contention urged by Nirmohi Akhara that they have been in management and charge of the disputed property is a claim in law, for the rights of management as de facto shebaits. Both Justices Viswanatha Sastri and Raghava Rao in Sankarnarayanan Iyer unequivocally held that isolated acts do not vest a person with the rights of a de facto shebait. The conduct in question, must be of a continuous nature to show that the person has exercised all the rights of a shebait consistently over a long period of time. The duration of time that would satisfy this requirement would, by necessity, be based on the facts and circumstances of each case. Justice Raghava Rao endorsed the view of Justice Viswanatha Sastri but went a step further to outline the practical difficulties in laying down a standard against which the acts of a person claiming to be a de facto shebait must be tested. The caution against adopting a low legal threshold to confer on a person who merely has possession of the debutter property and exercises intermittent managerial rights the position of a de facto trustee is well founded.
372. A de facto shebait is vested with the right to manage the debutter property and bring actions on behalf of the idol. A bona fide action for the benefit of the idol binds it and its properties. As compared to a de jure shebait whose rights can legally be traced to a deed of endowment, a de facto shebait is vested with the right by mere possession and exercise of management rights. The protection of the idol’s properties is at the heart of this extraordinary conferral of rights. If courts were to adopt a standard that is easily satisfied, large tracts of debutter property may be left at the mercy of persons claiming to be in possession of and managing such properties. It is the duty of the court in every case to assess whether there has been not just exclusive possession but a continuous and uninterrupted exercise of all management rights which are recognised by the beneficiaries of the trust property before conferring on a person a right to which they have no legal title.
373. The duties that bind the exercise of powers of a de jure shebait apply equally to a de facto shebait. Thus, no action can be brought by the de facto shebait which is not in the beneficial interest of the idol or its properties. However, the position of a de facto shebait and a de jure shebait is not the same in all respects. In Sankaranarayanan Iyer, Justice Viswanatha Sastri held:
“It should be observed that the rights of a de facto trustee are not in all respects identical with those of a de jure trustee. A de jure trustee of a public religious endowment can be removed only for misconduct and that only in a suit instituted with the sanction prescribed by Section 92, Civil Procedure Code or section 73 of Madras Act II of 1927. Where, however, there is only a de facto shebait functioning as such, it is open to persons interested in the trust to bring a suit under the above provisions alleging a vacancy in the office and requiring that it should be filled up by the appointment of a trustee by the court. This would entail the removal of the de facto trustee without any misconduct on his part…The de facto trustee so long as he is functioning as such, has, from the necessities of the situation, the right to bring suits on behalf of and in the interests of the trust for evicting trespassers claiming adversely to the trust. In this respect and for this purpose, his rights and powers are the same as that of a de jure trustee…”
A de jure shebait can be removed from office only on the grounds of mismanagement or claiming an interest adverse to the idol. However, no such averment is required to remove a de facto shebait. A de jure shebait may, unless the right of the de facto shebait has been perfected by adverse possession, displace a de facto shebait from office and assume management of the idol at any point. Further, where there is a de facto shebait, a suit may be instituted under Section 92 of the Civil Procedure Code 1908 requiring the court to fill up the vacancy by the settling of a scheme. It is for the limited purpose of bringing an action for the protection of the idol that the rights and powers of the de facto shebait are the same as that of the de jure shebait.
374. The position of law that a person in continuous and exclusive possession of the debutter property who exercises management rights in the interests of the idol can bring actions on its behalf has found recognition by this Court in Vikrama Das Mahant v Daulat Ram Asthana234. The appellant was confirmed as a manager by virtue of a judgment of the Privy Council (on the ground that the previous Mahant had transferred the property to him). Prior to the date of the judgment of the Privy Council, another compromise decree was entered into by the then Mahant with certain persons who instituted a proceeding to have him removed. While some of the persons who brought the actions took over as trustees under the terms of the compromise, one of them took over as the Mahant and entered into possession of the property. Three of the trustees and the successor of the previous mahant filed a suit against the appellant. Both lower courts held against the appellant. The High Court held that even if the compromise decree is set aside, the plaintiffs are entitled to maintain the suit by virtue of being de facto trustees whose possession has been clear and undisputed. Both courts below recorded that pursuant to the compromise decree, the plaintiffs and the appointed Mahant entered into possession and the properties were mutated in the name of the Mahant, and had been in possession since then. Justice B Jagannadhadas, speaking for a Constitution Bench of this Court held:
“33…the question before us is whether a person who has been in de facto possession and management of the Asthan and its properties from 1934 to 1941 (and thereafter up-to- date) claiming to be its trustee under the decree of a court, valid or invalid has not sufficient interest to maintain proceedings for the warding off of a cloud cast by the defendant’s actions against the interests of the Asthan…”
“34..where public trusts are concerned, courts have a duty to see that their interests and the interests for whose benefit they exist are safeguarded…We consider that, in view of Ram Sarup Das’s long management and possession as Mahant and in view of the fact that he is purporting to act on its behalf and for its interest, it is proper that he should be allowed to continue to act on behalf of the trust until his title in investigated in appropriate proceedings and that this Court should grant a decree in his favour in these proceedings for the benefit of the trust.”
The Court affirmed that it is only for the paramount interest of the institution that the right of suit is conceded to persons acting as managers though lacking a legal title of a manager. The long management and possession of the claimant in the case vested in him a right to act on behalf of the deity to protect its interests.
375. In Sree Sree Kalimata Thakurani of Kalighat v Jibandhan Mukherjee235, a suit was instituted under Section 92 of the Code of Civil Procedure 1908 for the framing of a scheme for the proper management of the seva-puja of the Sree Kali Mata Thakurani and her associated deities and for the proper management of the vested properties. A scheme was framed and subsequently challenged on the ground that the inclusion of de facto shebaits in the management committee in the scheme was impermissible. Justice JR Mudholkar, speaking for a Constitution Bench of this Court rejected this contention and held:
“Whatever that may be, we cannot ignore the fact that the present predecessors have been functioning as shebaits for a very long period and their rights in that regard have not been called into question ever before. In these circumstances we cannot accept the contention of the learned counsel that they should be completely excluded from the management of the temple.”
In crafting the relief, the Court was mindful of the long exercise of rights by those acting as shebaits. The initial scheme framed by the High Court comprised eighteen members on the managerial board of which twelve were shebaits. The Court modified this to a Board of eleven members, with five shebaits and a majority of Hindus who were not shebaits.
376. The protection of the trust property is of paramount importance. It is for this reason that the right to institute proceedings is conceded to persons acting as managers though lacking a legal title of a manager. A person claiming to be a de facto shebait can never set up a claim adverse to that of the idol and claim a proprietary interest in the debutter property. Where a person claims to be the de facto shebait, the right is premised on the absence of a person with a better title i.e. a de jure manager. It must be shown that the de facto manager is in exclusive possession of the trust property and exercises complete control over the right of management of the properties without any hindrance from any quarters. The person is, for all practical purposes, recognised as the person in charge of the trust properties. Recognition in public records as the manager would furnish evidence of being recognised as a manager.
377. Significantly, a single or stray act of management does not vest a person with the rights of a de facto shebait. The person must demonstrate long, uninterrupted and exclusive possession and management of the property. What period constitutes a sufficient amount is determined on a case to case basis. The performance of religious worship as a pujari is not the same as the exercise of the rights of management. A manager may appoint one or several pujaris to conduct the necessary ceremonies. In the ultimate analysis, the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon the facts of each case. The acts which form the basis of the rights claimed as a shebait must be the same as exercised by a de jure shebait. A de facto shebait is vested with the right to institute suits on behalf of the deity and bind its estate provided this right is exercised in a bona fide manner. For this reason, the court must carefully assess whether the acts of management are exclusive, uninterrupted and continuous over a sufficient period of time.
Duration of time
378. A final question that is relevant for our present enquiry is whether a de facto shebait can claim a right to continue indefinitely in office. As seen earlier, a de jure shebait and a de facto shebait exercise similar rights in the limited sense of acting for the benefit of the idol. Even absent an averment of mismanagement by the shebait, a person may institute proceedings under Section 92 of the Code of Civil Procedure 1908 against a de facto shebait for the settling of a scheme. In this view, legal certainty and the sustained interest of the deity would be served by circumscribing the claim of a de facto shebait to continue, as a matter of right, in perpetuity.
379. In Gopal Krishnaji Ketkar v Mahomed Jaffar Mohamed Hussein236 the plaintiffs instituted a suit praying for a declaration that the second plaintiff is the guardian and ‘vahivatdar’ of the Darga. The defendant claimed to be its rightful manager and Mutawalli. The plaintiffs’ family were managers since 1817. Since 1902-03, the defendant was given the right to manage prayers during a certain period every year in the temple and collect the offerings for his upkeep. Upon alleged interference with the plaintiffs’ right to manage and collect offerings, the suit was instituted. The Court found that the plaintiffs and their family had been managing from at least the year 1886. The Court held that as the right claimed by the defendant was not that of a hereditary trustee, the right dies with him and the only question was whether or not the plaintiffs were entitled to management and the offerings. Justice Vivan Bose, speaking for a three-judge Bench of this Court held:
“30. Now a ‘de facto manager or a trustee de son tort’ has certain rights. He can sue on behalf of the trust and for its benefit to recover properties and moneys in the ordinary course of management. It is however one thing to say that because a person is a ‘de facto’ manager he is entitled to recover a particular property or a particular sum of money which would otherwise be lost to the trust, for and on its behalf and for its benefit, in the ordinary course of management; it is quite another to say that he has the right to continue in ‘de facto’ management indefinitely without any vestige of title, which is what a declaration of this kind would import. We hesitate to make any such sweeping declaration… That being so, we think it undesirable that things should be allowed to drift in this uncertain way, no one knowing where the legal rights of management lie or of what they consist; no one knowing how the rights are to devolve or how the large charitable offerings which are collected are to be distributed and used.”
(Emphasis supplied)
380. The Court drew a distinction between a claim in law to be vested with the right to bring an action on behalf of the deities and a claim to continue indefinitely as a de facto shebait which, for all purposes, would be equating a de facto shebait with a de jure shebait and conferring upon the former a legal title where it has always been absent. Legal certainty and the ultimate protection of the trust properties underlie Section 92 of the Code of Civil Procedure 1908. Under this provision, the Court is, upon an application by the Advocate-General or two or more persons having an interest in the trust and having obtained the leave of the court, vested with wide powers to replace trustees and settle a scheme with respect to the trust property. Keeping this in mind, the Court framed directions in accordance with the above observations:
“32. We are told by the learned Solicitor-General that a suit under Section 92, Civil P.C. is under contemplation. Without in any way prejudicing matters which will arise there, we make the following order. We direct-
1. That the present arrangement regarding the collection and disposal of the offerings continue for a period of six months from the date of this judgment.
2. That in the interval the offerings so collected, as well as those already in deposit, he not handed over to the second plaintiff except to the extent necessary for meeting the expenses. The legal representatives of the defendant have no right at all to those offerings.
3. If such a suit is instituted within the said period, then the said offerings and collections be disposed of in accordance with such scheme as may then be framed, and in accordance with such directions as may be given in that suit.
4. If no such suit is instituted within the said six months, then the second plaintiff, as the person in ‘de facto’ management of the Darga from 13-11-1938, the date of his adoption, till the date of suit, 7-10-1946, will be entitled to receive the offerings now lying in deposit in the Treasury for and on behalf of the Darga and for its benefit and in future to collect all the offerings all the year round for and on behalf of the Darga and for its benefit until he is displaced by a person with better title or authority derived from the Courts.”
381. In Vikrama Das Mahant v Daulat Ram Asthana237, the compromise decree on the basis of which the Mahant claimed a right and entered into possession was not given effect. The decree of the trial court giving effect to the compromise decree was set aside. Though the court sustained the rights of the Mahant to continue as a de facto manager, the Court held:
“19. But this is only a stop gap expedient. We cannot shut our eyes to the fact that we have before us a public trust of which, on the facts now before us, an alleged intermeddler claiming under a decree said to be void is in possession and management. It may be, when proper proceedings are instituted to determine the matter, that it will be found that he is not without legal authority or it may be proper to invest him with that authority if he has not already got it, or again it may be better to have another person or body.
But those are not matters we need decide in these proceedings. All we need do is to bring the present state of facts to the notice of the Advocate General of Uttar Pradesh and leave him to consider whether he should not, of his own motion, institute proceedings under S. 92, Civil P. C., or take other appropriate steps. Let a copy of this judgment be sent to him.”
382. The decisions of this Court in Gopal Krishnaji Ketkar and Vikrama Das affirm that the interest of protecting the trust properties was the basis of conferring upon a de facto shebait the limited right of instituting bona fide suits on behalf of the idol. Where there was no de jure shebait, the law recognised the person managing the property as a shebait to the extent of protecting the idol and its properties. However, this limited recognition did not confer upon de facto shebaits the right to continue in perpetuity.
The Nirmohi Claim
383. Having adverted to the legal standard that must be satisfied for a court to recognise a de facto shebait, the stage has been reached to adjudicate upon the contention urged by the Nirmohi Akhara that it is the shebait of the idols at the disputed site. Nirmohi Akhara is a Panchayati Math of the Ramanandi sect of Bairagis which is a religious denomination. The customs of Nirmohi Akhara purport to have been reduced to writing by a registered deed dated 19 March 1949. It was contended that the disputed structure is a temple building which has been in the possession of Nirmohi Akhara and only the Hindus have been allowed to enter the temple and make offerings. Nirmohi Akhara claims that it has been receiving the offerings through its pujaris. The averments contained in the plaint as well as the reliefs which have been claimed by Nirmohi Akhara indicate that the claim is to a right to manage and have charge of the temple. Nirmohi Akhara contended that it has been in possession of the property and has exercised management rights which amounts to a conferral on them of the status of a de facto shebait.
384. At the outset, it was contended by Nirmohi Akhara that absent an averment in the plaint in Suit 5 disputing its status as the shebait of the idols of Lord Ram, their status as shebaits cannot be disputed. It was further contended that no rival claim to the rights of the shebait have been set up in any suit. Consequently, it was urged that it must be held that the Nirmohis are the shebaits of the idols of Lord Ram. This contention cannot be accepted. If Nirmohi Akhara were to be recognised as a de facto shebait, this would confer on it a substantive right in law to bring actions on behalf of the idol to the exclusion of all other persons. The actions of a shebait bind the idol and its properties. Absent an express deed of dedication conferring shebaiti rights on Nirmohi Akhara, there is a positive burden on it to demonstrate that it was in fact a shebait of the idols. For this reason, the Nirmohi Akhara must establish, on the basis of oral and documentary evidence, that they have exercised all the rights required to be recognised as de facto shebaits.
385. Nirmohi Akhara denies the incident of 22/23 December 1949 during which the idols were surreptitiously introduced into the inner sanctum of the disputed structure. The claim that Nirmohi Akhara were in possession of the inner courtyard on the basis of the evidence on record has already been rejected. Nirmohi Akhara has failed to prove that at the material time, the disputed structure was a temple which was in its possession and that no incident had taken place on 22/23 December 1949. Absent exclusive possession of the inner courtyard, the claim that Nirmohi Akhara was managing the inner courtyard as shebaits does not arise. It was in this context that Justice Sudhir Agarwal held:
“2994. Now coming to Issue No. 3 (suit-3), it has to be kept in mind that this suit is also confined to the premises within the inner Courtyard and not the entire premises, i.e., the outer and the inner Courtyard including the building. This is what is stated by the counsel for Nirmohi Akhara in his statement made on 17.5.1963 under Order X Rule 1 CPC.
4537. In these particular facts and circumstances and the stand of Nirmohi Akhara, we have no option but to hold that so far as the idols of Bhagwan Sri Ram installed in the disputed structure i.e. within the inner courtyard is concerned, the defendant Nirmohi Akhara cannot be said to be a Shebait thereof.”
386. In the written submissions of Nirmohi Akhara it has been contended that the inner and outer courtyard form a composite whole and Suit 3 was only filed with respect to the inner courtyard as only the inner courtyard was the subject of the attachment proceedings. Nirmohi Akhara submits that the attachment order made an arbitrary distinction between the inner and outer courtyard and a finding with respect to the inner courtyard does not undermine their claim to shebaitship of the entire premises. Even if this argument is accepted, apart from the determination that Nirmohi Akahra was not in possession of the inner courtyard, the independent question that arises for our determination is whether Nirmohi Akhara consistently exercised management rights over the idols in the outer courtyard to claim a right in law as a de facto shebait of the idols of Lord Ram. To support their contention, Nirmohi Akhara has relied on the oral evidence of witnesses in Suits 3 and 5 and also submitted certain additional documents to establish its status as shebait.
387. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiff in Suit 3 placed reliance on the witness statements of Mahant Bhaskar Das (DW 3/1) and Raja Ram Pandey (DW 3/2) in Suit 3 to contend that it was admitted that the Nirmohi Akhara had been exercising the rights of a shebait since time immemorial. The oral evidence submitted by Nirmohi Akhara has already been analysed in the course of this judgement. The statements by their witnesses cannot be relied on to establish a cogent account of the activities undertaken by Nirmohi Akhara at the disputed site. Numerous witnesses admitted to not having read their own affidavits in lieu of their Examination-in-Chief. The witnesses merely signed the relevant documents without understanding the testimony contained therein. Further, under cross-examination, a number of the witnesses expressly contradicted their own statements. Several witnesses admitted to not having even entered the disputed structure or rescinded earlier statements about their visits to the disputed structure. In light of these observations, the oral evidence relied upon by Nirmohi Akhara to establish their position as shebaits cannot be accepted. However, for the sake of completeness, the relevant extracts are examined below.
388. Mahant Bhaskar Das (DW 3/1) was the Panch of Nirmohi Akhara since 1950 and was at the material time the Sarpanch. In his affidavit, it was stated:
“81. Lord Ram Lalla is seated in the inner part even before 1934 and it had been in the possession of Nirmohi Akhara continuously since 1934. The Muslims are not ignorant about it. The Lord is seated there. His worship, royal offering all is done on behalf of Nirmohi Akhara. On the day of the attachment (viz 29.12.1949) of the inner part also it was in possession of the Akhara. The ownership got ordained in Nirmohi Akhara due to its being a religious trust.”
It has been held, in the course of this judgement, on an analysis of the evidence on record, that the idols were shifted under the central dome on in the intervening night of 22/23 December 1950. The affidavit of this witness contains references to the existence of Nirmohi Akhara in Ayodhya for 200 years and in the disputed site. However, with regard to the exercise of shebaiti rights, the witness states:
“35. An annual contract was given to provide flowers, fruits, batasha, etc., to the visitors of the eastern door temple of Sri Ram Janambhomi. This was being done since ancient time by the previous Mahants of Nirmohi Akhara and an agreement was executed for it. The Brahmins were given the contract to provide holy and fresh water from the Sita Koop to the visitors/devotees. The tax was paid to the Mahant of the Akhara. I have submitted all the available agreements with me and many documents were plundered. The report was lodged for the same.”
In the cross examination of this witness by Mr Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central Waqf Board, on 11 September 2003, the witness replied:
“After the attachment the offerings which were made on the idols places in the disputed building were not a part of any contract by Niromohi Akhara. There is a mention of agreement about the contract in para 36 of my affidavit but I do not remember how many such agreements were submitted in this court on behalf of Nirmohi akhara. I do not remember this time the names of those people who were made to write the aforesaid so called agreement by Nirmohi Akhara. I do not remember any name this time. I have written in para 35 of my affidavit about submitting such agreement in the court and Bindeshwari Dubey was one of them who wrote the agreement and it is submitted in the them who wrote the agreement and it is submitted in the court. Which is the Document No. 39 C-1/39, I cannot tell it by the number but the paper is titled.”
(Emphasis supplied)
Though the witness makes reference to the presence of the Nirmohi Akhara in the disputed site, the witness is unable to recall any of the documents mentioned to have been submitted by him as evidence that the Nirmohi Akhara were exercising management rights as the shebait. It is also important to note the answer of this witness to the question put by Mr Jilani in the cross-examination dated 17 September 2003:
“Question: – Shall I take it that most of the part of this affidavit was drafted by your advocate on the basis of his knowledge? Answer:- It is wrong to say so. Some parts of this affidavit is based on the knowledge of my advocate but I do not remember which is that part and I will not be able to tell it.”
(Emphasis supplied)
The statements of DW 3/1 demonstrate that the witness was completely unaware of the documents alleged to have been submitted by him as evidence. The statements do not inspire confidence that the Nirmohi Akhara was exercising management rights as the shebait.
389. Mr S K Jain then relied on the Examination-in-Chief by way of affidavit of Raja Ram Pandey (DW 3/2) wherein it was stated:
“14. …Before attachment of Garb Grah and till the taking over of its charge by the receiver, I have seen the Priest and the Assistant Priest of Nirmohi Akhara reciting Aarty, offering deferential situations and giving ‘prasad’ and ‘Charanamrit’ and similarly I have seen upto February, 1982 the Priest, The Assistant Priest the Panch of Nirmohi Akhara reciting Aarti and performing ‘pooja’ (worship) in ‘Chabootra Mandir and
“Chhati Poojan sthal”.”
As noted above, a pujari who conducts worship at a temple is not elevated to the status of a shebait. A pujari gains no independent right despite having conducted the ceremonies for a long period of time. Thus, the mere presence of pujaris does not vest in them any right to be shebaits. The mere performance of the work of a pujari does not in and of itself render a person a shebait. The statement of DW 3/2 establishes at the highest that some priests of Nirmohi Akhara were acting as pujaris, but does not evidence the exercise of management rights for the recognition of their status as a shebait.
390. Mr S K Jain also placed reliance on the testimony of Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18) in Suit 3 to contend that Nirmohi Akhara had been exercising management rights over the disputed site, including the performance of pujas. DW 3/18 was an intermittent resident of Ramkot, Ayodhya since 1930 and claimed to have lived at various temples and religious shrines in close proximity to the disputed site. During his Examination-in-Chief, DW 3/18 states:
“In 1930 I went for darshan of Shri Ram Janam Bhoomi Mandir about which the suit is subjudice. At that time too Bhagwan Ram Lalla was sitting there, I took darshan and also took prasad, Aarti and charnamrit (sacred water). I had been receiving prasad, Aarti and Charnamrit from the Priest and Sadhus of Nirmohi Akhara living in the outer part i.e. in the Sant Niwas and store rooms situated in the north of main eastern gate, called Hanumatha dwar, in the north of Ram Chabutra.”
(Emphasis supplied)
The witness stated that the priests in charge of the puja were priests of Nirmohi Akhara. However, under cross-examination by learned Senior Counsel Mr Jilani, the witness stated:
“…First of all, I have darshan of Ramchabutra, then Ramlalla, Sita Kitchen and to Shankar Chabutra and from there I used to come back. Sometime I used to offer prasada while having darshan to Pujari (Priest) for offering in the inner side. I do not remember the name of Priest. Priest kept on changing. He himself said that Mahant of Hanumangarhi Faizabad remained the Priest for long time. I do not remember his name at present. On being reminded by learned cross-examiner advocate, he said priest name was Bhaskar Das.
…
Bhaskar Dasji remained the priest of the disputed site for years but he was not a Mahant of Nirmohi Akhara ever. He was a priest of Hanumangarhi, Faizabad. At present he is neither a Mahant of Nirmohi Akhara nor a priest. He is a member of the committee. I do not know how many members are there in a committee.”
(Emphasis supplied)
Despite the initial statement that it was Nirmohi Akhara that performed the puja at the disputed site, the witness contradicts this statement under cross examination. The witness stated that it was one Bhaskar Das who performed puja. Bhaskar Das, according to the witness himself, was not associated with the Nirmohi Akhara. The contradictory stance of the witness cannot be relied upon to establish that Nirmohi Akhara were exercising management rights or even conducting the performance of the puja at the disputed site prior to 1949.
391. The testimony of several of the witnesses relied upon by the plaintiffs in Suit 3 is riddled with inconsistencies and contradictions. The testimony of DW 3/18 is no different. During his testimony he stated:
“…The size of chabutra was about three-four feet, three feet in width and at one and half feet high from the ground level. This chabutra was just below the mid dome and is made of cement and bricks. This chabutra was at distance of two feet from western wall and was in the east…
…
It is not correct to say that 5-6 thousand Hindus have kept the idols there on the night of 22/23.12.49, by making forceful entry into. It is also not correct to say these people have desecrated the Masjid. It is also not correct to say that idols were kept there in the night because idols have already been there. The point reported in the F.I.R. that idols were kept on the night of 22.12.1949, was incorrect….”
(Emphasis supplied)
During the course of this judgement a wealth of evidence has been produced by the parties. There is no evidence to suggest that the Ramchabutra was ever under the central dome of the mosque or that the idols existed inside the mosque prior to December 1949. The witness further goes on to state:
“Telling a lie have been described as a sin in the dharmshastras. But if by telling a lie, proves a savior then there is no harm in telling a lie. Similarly there is no harm in telling a lie by a person who is dying of hunger. If there is a religious place and if somebody is acquiring it through wrong means or forcibly occupying them, there is no harm in telling a lie. If the religious place is taken away forcibly by others by telling a lie then it is correct.”
(Emphasis supplied)
In light of these statements by the witness no reliance can be placed on his testimony.
392. Mr S K Jain has relied on the statement of Mr Jilani recorded on 22 April 2009 under Order X Rule 2 of the Code of Civil Procedure where it was stated:
“…the existence of Nirmohi Akhara from the second half of nineteenth century onwards is also not disputed. It is however denied and disputed that Nirmohi Akhara was in existence and special in Ayodhya in 16th century AD or in 1528 AD and it also denied that any idols were there in the building of the Babri Masjid up to 22nd December, 1949.”
There is a distinction between the mere presence of Nirmohi Akhara at Ayodhya or around the disputed site and the actual possession and management of the disputed site. A mere presence within an area or possession of an area is not sufficient to be vested with the powers of a shebait. Nothing in Mr Jilani’s statement demonstrates or concedes management or even possession by Nirmohi Akhara.
393. Reliance was then placed on the oral testimony of plaintiff witnesses in Suit 5. Mr S K Jain urged that these witnesses have admitted that it was the priests of the Nirmohi Akhara who were managing the idols at the disputed structure, before and after attachment. It was submitted that as the witnesses in Suit 5 had admitted the status of the Nirmohi Akhara as shebaits, no more evidence was required to be placed before this Court to establish that the Nirmohis are the shebaits. The relevant portions of these witness statements are as follows:
(i) Sri Mahant Paramhans Ram Charan Das (OPW-1)
“… Before attachment, Hindus had been going to Garba Griha without any restrictions for having Darshan. Idols of Lord Saligram, Hanumanji and Ramlalla were installed there. People Belonging to the Nirmohi Akhara never obstructed any Hindu from going to the Garba Griha. Members of the Nirmohi Akhara used to manage Garbha Griha before attachment…”
(ii) Deoki Nandan Agarwal (OPW-2)
“…Bairagis of Nirmohi Akhara who used to worship at the Ram Chabutra did not allow muslims to enter inside. Therefore Namaz could never be performed in this place in spite of efforts made constantly”
“…Worship of idols which existed earlier on Ram Chabutra and of the idol installed after 1949 was got done only by the two people of the Nirmohi Akhara till a quarrel arose with Dharamdasji”
(iii) Shri Ram Nath Panda @ Bansari Panda (OPW-5)
“In the Barred wall, there were two doors which used to remain locked and those doors were opened and closed by the Pujaris of the Nirmohi Akhara. The same very pujari used to offer prayers and perform Arti at Ram Chandra and Sita Rasoi Etc. We used to arrange Darshan of the Garbh Griha for the pilgrims from the railing itself. A Donation box was also kept there. On the main gates were the shops of Batasha and flowed/garlands. One of those belong to Sehdev mali.”
“…The key of the lock used to be in the possession of people of Nirmohi Akhara and whose pujari would open the lock, close the lock, and perform Arti puja and sounded bells and bugles…”
“…from 1949 to 1970, I used to go to Ram Janm Bhumi Temple regularly. After the attachment of 1949, the receiver of Garbh Girha-Babu Priya Dutt Ram became the chairman of the Municipality Faizabad and at places like Ram Chabutra Temple, Chhathi Puja Sthal, Bhandar Sthal and Shiv Darbar Puja continued to be performed in the same way as before and was performed by the same people who used to perform it before…”
The testimony of the plaintiff witnesses in Suit 5 have been selectively extracted and do not bear out the conclusion that Nirmohi Akhara was a shebait. The statements of OPW – 1 that Nirmohi Akhara managed the inner courtyard are not supported by the evidence adduced, on which findings are recorded elsewhere in this judgement. Similarly, the isolated statement by OPW – 5 that the Nirmohis possessed the key to the outer courtyard is not corroborated by any other statements. If the Nirmohis possessed the key to the outer courtyard, every visitor to the disputed site, whether Hindu or Muslim, would have required the permission of the Nirmohis to enter. If true, such a state of affairs would have surely been recorded by other witnesses in their testimony. The statement of OPW – 2 once again merely indicates the presence of the Nirmohis in and around the disputed site. It indicates a disagreement between the Nirmohis and Dharam Das about the movement of the idols to the inner courtyard in 1949. This statement undermines the claim of the Nirmohis as exclusive managers of the deity as it evidences disagreement about the placement of the idols. The continued disavowal of the events of 22/23 December by the Nirmohi Akhara lends credence to this observation.
394. The oral testimony relied on by Nirmohi Akhara establishes, at best, that they were present in and around the disputed site. However, the presence of the Nirmohis around the disputed site does not amount to the exercise of management rights which entitle them in law to the status of a de facto shebait.
The oral evidence in Suit 3 upon which reliance was placed is riddled with inconsistencies and does not bear out the conclusion that Nirmohi Akhara exercised management rights on behalf of the idols of Lord Ram. The oral evidence of the three witnesses in Suit 5 has been selectively extracted and the statements therein are not corroborated by the testimony of any other witness. Independent of the oral testimonies, Nirmohi Akhara has placed reliance upon documentary evidence to establish its status as shebait of the idols at the disputed site. These documents are as follows:
(i) The complaint dated 25 September 1866 by Meer Rajab Ali Khateeb against Tulsidas regarding the “Kothri” constructed by certain bairagis inside the compound of the mosque;
(ii) Exhibit 30 – Suit 1: The appeal dated 13 December 1877 by Mohd. Asghar against Mahant Khem Das with respect to the order permitting the construction of a new gate on the northern side;
(iii) Exhibit 7 – Suit 5: Gazetteer of the Province of Oudh (1877-78);
(iv) Exhibit 24 – Suit 1: The plaint dated 8 November 1882 in the suit instituted by Syed Mohd. Asghar against Mahant Raghubar Das seeking rent for the use of the Chabutra;
(v) Exhibit 28 – Suit 1: The complaint dated 27 June 1884 by Mahant Raghubar Das seeking spot inspection in view of the work being carried out by Syed Mohd. Asghar for painting the mosque;
(vi) Exhibit A-22 – Suit 1: Suit dated 19 January 1885 filed by Mahant Raghubar Das seeking permission for the construction of a temple on the site of the Ramchabutra;
(vii) Exhibit 8 – Suit 3: Copy of agreement dated 11 June 1900 permitting Jhingoo (son of Gaya) to provide drinking water to the pilgrims visiting Ram Janmabhumi site at Ayodhya;
(viii) H R Nevill’s “The Gazetteer of the United Provinces of Agra and Oudh” (1905) stating that the Nirmohi Akhara sect formerly held the Janmasthan temple in Ramkot, the remains of which still belong to them;
(ix) Exhibit 9 – Suit 3: Copy of agreement dated 13 October 1942 regarding the Theka Shop of Janmabhumi Ram Kot Ayodhya executed by Narottam Das in favour of Gopal (son of Babu);
(x) Exhibit 10 – Suit 3: Agreement dated 29 October 1945 executed in respect of a shop by Mahant Raghunath Das;
(xi) Exhibit 49 – Suit 4: Mutation entry in favour of the Mahant Raghunath Das; and
(xii) Statement by DW – 10 by Umesh Chandra Pandey.
It was further contended that while the Supurdaginama, by which the Receiver took possession does not record from whom possession was taken, the document indicates the presence of the Nirmohi Akhara in the outer courtyard.
Lastly, it was urged that after the interim order was passed in the Section 145 proceedings, the seva-puja continued “as before” and was conducted by the priests of the Nirmohi Akhara.
395. Nirmohi Akhara urged that the presence of numerous Bairagis of the Nirmohi Akhara at the disputed site evidences the exercise of management rights. To support this, Nirmohi Akhara relied on the following:
(i) Edward Thornton (1854, Gazetteer of the territories under the Government of East India Company) refers to the presence of about 500 Bairagis;
(ii) Letter dated 29 November 1949: Kripal Singh, the then Superintendent of Police at Faizabad addressed a letter to K K Nayar, the Deputy Commissioner mentioning that “several thousand Hindus, Bairagis and Sadhus” are to participate in the performance of the proposed Kirtan;
(iii) Letter dated 16 December 1949: K K Nayar (the Deputy Commissioner and District Magistrate, Faizabad) addressed a communication to Govind Narayan stating that “some time this year probably in October or November some grave-mounds were partially destroyed apparently by Bairagis who very keenly resent Muslim associations with this shrine”; and
(iv) Reference is also made to the presence of the Bairagis in the report of Waqf Inspector dated 23 December 1949 marked as Exhibit A-64 in Suit 1.
The evidence relied on by the Nirmohi Akhara in this regard, evidences at best the presence of the Bairagis of the Nirmohi Akhara at the disputed site. No other credible documents or evidence was produced to show that these Bairagis in fact exercised the rights of management of a shebait.
396. The complaint of 25 September 1866 filed by Meer Rajab Ali Khateeb states that it is filed against one ‘Tulsidas’. Nirmohi Akhara sought to rely on oral evidence to prove that Tulsidas was in fact a Mahant of the Nirmohis and that it was Nirmohi Akhara who constructed the “Kothri”. It has already been held that the oral evidence relied on by the Nimohis to substantiate their claim is not reliable. The document itself does not prove that Tulsidas was a Mahant of the Nirmohis nor that the construction was carried out by the Nirmohis. It is not corroborated by any other documentary evidence ordinarily associated with such a construction at the time and does not evidence the exercise of rights as a shebait.
397. Exhibits 8, 9 and 10 in Suit 3 establish that the Nirmohis were providing various services to the pilgrims visiting the disputed structure. However, all three exhibits pertain to the grant of permission to provide these services outside the disputed structure. At its highest, these exhibits show that the Nirmohis were present in and around the disputed structure and assisted the pilgrims. It does not however evidence any management over the idols or the disputed site itself.
398. Significant reliance was placed on the role of Mahant Rahubar Das as a Mahant of the Nirmohi Akhara. Reliance in this regard was placed on Exhibits 24 (suit dated 8 November 1882 filed for the collection of rent), Exhibit 28 (complaint dated 27 June 1884 seeking plot inspection) and Exhibit A-22 (1885 suit filed for the construction of a temple on the Ramchabutra) in Suit 1 adverted to above. It was contended that Mahant Raghubar Das filed the above suits as a Mahant of the Nirmohi Akhara. On this basis, it was contended that the management and charge of the deity was taken care of by the Nirmohi Akhara. A closer analysis reveals the numerous contradictions in the stand of the Nirmohi Akhara with respect to Mahant Raghubar Das. In the Suit of 1885, Mahant Raghubar Das claimed to be the “Mahant, Janmasthan, Ayodhya”. In the written submissions filed by Nirmohi Akhara it was stated that Mahant Raghubar Das filed the Suit of 1885 in a personal capacity:
“…the said suit [1885] was filed by Mahant Raghbar Das in his personal capacity without even mentioning the name of Nirmohi Akhara and in any case the subject property in the said suit – (Chabutra in Outer Courtyard) was different from the suit-property (Inner Courtyard) which is the subject matter of OOS No. 3”.
(Emphasis supplied)
However, in the same written submissions, while speaking of the report of the Waqf Inspector dated 23 December 1949, it was said:
“He mentions the name of Mahant Raghubar Das along with others who invited the Muslims for talks. Mahant Raghubar Das is the Mahant of Nirmohi Akhara.”
(Emphasis supplied)
In the replication, Nirmohi Akhara disavowed any awareness about the suit by Mahant Raghubar Das:
“…The plaintiffs are not aware of the said suit, if any, filed by any person known as Mahant Raghubar Das as Mahant of Janma Asthan.”
In the Written Statement filed on the behalf of Nirmohi Akhara in Suit 4, it was stated:
“…The answering defendants are not aware of any suit having been filed by any person known as Mahant Raghubar Dass styling himself to be the Mahant of Janam Asthan…”
In the suit of 1885, Mahant Raghubar Das claimed to be the Mahant, Janmasthan, Ayodhya. In the oral hearings before this Court as well as the hearings before the High Court, Nirmohi Akhara claimed that Mahant Raghubar Das was a Mahant of Nirmohi Akhara. Justice Sudhir Agarwal makes the following observation:
“964. What we have already noticed, it has not been disputed by Nirmohi Akhara that in 1885 Raghubar Das was Mahant of Nirmohi Akhara…”
It is clear from the above extracts that Nirmohi Akhara sought to espouse Mahant Raghubar Das as a Mahant of the Nirmohi Akhara to establish that they have acted as shebaits since the 1800s. Yet they distance themselves from the Mahant when dealing with the question of res judicata. Nirmohi Akhara even stated that it was unaware of the Suit of 1885. The inconsistent stance of the Nirmohi Akhara with respect to Mahant Raghubar Das leads to an adverse inference against them.
399. The documentary evidence which has been produced by Nirmohi Akhara does not show that it was managing the property in question. Apart from the documentary evidence analysed above which does not further the case of Nirmohi Akhara, no evidence has been produced to show the exercise of management rights by Nirmohi Akhara. Stray acts do not constitute sufficient evidence to establish continuous, exclusive and uninterrupted exercise by Nirmohi Akhara of the rights and duties of a de facto shebait. No document that evidences repairs, construction, appointment of pujaris, or other activities has been produced before this Court. Significantly, apart from a stray reference in the account of the travellers, no document of Nirmohi Akhara has been put on record to show the exercise of management rights. The customs of Nirmohi Akhara were reduced to writing by a registered deed only on 19 March 1949.
400. When a question was put to Mr S K Jain to produce the original documents that establish the claim of the Nirmohi Akhara as shebaits, it was contended that an alleged dacoity had led to loss of the documents necessary to substantiate the claim. To substantiate this claim, it was contended that an FIR was filed on 18 February 1982 against Dharam Das. However, in the written submission submitted by the Nirmohis, it is stated that though Dharam Das remained in jail for two months, the case was subsequently quashed on the basis of a compromise. No documents have been adduced to substantiate this claim other than a reliance on the statement of a single witness – Raja Ramachandracharya (DW 3/20). This argument is an attempt to gloss over the glaring absence of any substantial proof of the exercise of management rights by the Nirmohis to confer on them the status of a shebait. The position of a shebait in law is of crucial significance. The shebait is the human ministrant and custodian of the idol and acts as its authorised representative. The shebait is vested with the right to bring an action on behalf of the deity and bind it. In this view, the claim of Nirmohi Akhara that it is a de facto shebait on the basis of the oral and documentary evidence on record has been analysed and it has been found that the claim has not ripened into shebait rights.
401. A claim of rights as a de facto shebait must be substantiated with proof that person is in exclusive possession of the trust property and exercises complete control over the right of management of the properties without any let or hindrance from any quarters whatsoever. For all practical purposes, this person is recognised as the person in charge of the trust properties. Though it cannot and has not been denied in the present proceedings that Nirmohi Akhara existed at the disputed site, the claim of Nirmohi Akhara, taken at the highest is that of an intermittent exercise of certain management rights. Their rights were peripheral, usually involving the assistance of pilgrims, and were constantly contested. As held above, a stray or intermittent exercise of management rights does not confer upon a claimant the position in law of a de facto shebait. It cannot be said that the acts of Nirmohi Akhara satisfy the legal standard of management and charge that is exclusive, uninterrupted and continuous over a sufficient period of time. Despite their undisputed presence at the disputed site, for the reasons outlined above, Nirmohi Akhara is not a shebait.
402. In light of the holding that Nirmohi Akhara is not the shebait for the idols of Lord Ram at the disputed site, it was open for an interested worshipper to sue on behalf of the deity. There existed no recognised shebait in law. In such a situation the idol’s independent right to sue was exercised through its next friend, a worshipper interested in the protection of the idol and its interests. Suit 5 is maintainable as a suit instituted by a next friend on behalf of the first and second plaintiffs in the absence of a lawfully recognised shebait.
403. Mr Jaideep Gupta, learned Senior Counsel appearing on behalf of Mahant Shri Dharam Das, respondent 12 in the present appeal urged that he is the successor (Chela) of Late Baba Abhiram Das, who was the priest of the Ram Janmabhumi temple before 1949. The present respondent is the Mahant of Akhil Bhartiya Sri Panch Nirvani Ani Akhara and Mahanth of Hanuman Garhi, Ayodhya. Late Baba Abhiram Das was defendant no 13/1 in Suit 4 and Defendant no 14 in Suit 5 and upon his death, the present respondent was substituted as defendant in the said suits. It is submitted that Late Baba Abhiram Das was the pujari of Janmasthan temple and played an instrumental role in its affairs. It has been submitted that prior to 1949, Late Baba Abhiram Das conducted the puja and even after the idol was placed inside the disputed structure, he continued to perform puja till 5 January 1950 when the receiver took charge. It is submitted that the present defendant being the chela of Late Baba Abhiram Das, is entitled to perform sewa-puja and bhog at the disputed structure as the shebait. In support of the above, the following submissions have been urged:
(i) The idol of Lord Ram was placed at the disputed structure in the intervening night of 22-23 December 1949. The deity after being placed inside the three domed structure (pratishthit) and the Ramjanmabhumi (swayambhu) are juristic persons and have the right and title over the disputed structure;
(ii) Nirmohi Akhara cannot claim to be the shebait with respect to the juristic entities after having denied their existence in their pleadings. When the incident took place in the intervening night of 22-23 December, no individual of Nirmohi Akhara was present there and no members of the Nirmohi Akhara were named as accused persons in the proceedings;
(iii) The respondent is the only person who can claim to be a shebait of the shrine of Ram Lalla and Janmabhumi. Respondent’s Guru Late Baba Abhiram Das along with several others resolved to restore the sacred Janmasthan to its pristine glory by taking a collective vow on the occasion of Vijayadashmi at a public meeting held on 2 October 1949, pursuant to which the surrounding area around the disputed site was sanitised. This was followed by Navahana pathas, Japa and Sankirthan both inside and outside the three domed structure;
(iv) As long there exists a shebait, the management of the deity cannot be handed over to the next friend or the Ram Janmabhumi Nyas in Suit 5. Both Suit 1 and Suit 5 have been filed in a personal capacity and no management or possession can be handed over to them; and
(v) The fact that Late Baba Abhiram Das was the pujari/priest/shebait of the deity has been established from the following facts and records:
(a) One Shri Bhaskar Das (DW 3/1) in Suit 4, who was the Sarpanch of Nirmohi Akhara in his cross examination stated and confirmed that Late Baba Abhiram Das was the priest of the disputed structure and not the priest of Nirmohi Akhara;
(b) In his statement dated 29 December 1950 given before the Magistrate under Section 145, Late Baba Abhiram Das had categorically stated that he and his other co-pujaris had been maintaining and managing the Janmabhumi temple and the surrounding land since 1934;
(c) The respondent stated before the High Court that various religious functions at the disputed premises were organised under the supervision of his Guru, Late Baba Abhiram Das and electricity connections were also in his name;
(d) Mohd Hashim, who is plaintiff no 7 in Suit 4 and defendant no 3 in Suit 5 stated in his cross examination that the idols were placed inside the mosque by Abhiram Das, Dharam Das and others;
(e) On 30 April 1992, Late Deoki Nandan Agarwal, plaintiff 3 in Suit 5 had stated that the idol was placed inside the central dome on 22-23 December 1949 by Shri Paramhans Ramchandra and Late Baba Abhiram Das along with others;
(f) Late Baba Abhiram Das has been named as accused no 1 in both the FIR dated 23 December 1949 and chargesheet dated 1 February 1950 for placing the idol inside the disputed structure. Late Baba Abhiram Das has submitted that he is the pujari of the Ram Janmabhumi in the bail bond dated 1 February 1950;
(g) The District Magistrate, Faizabad in his report dated 23 December 1949 observed that the crowd was controlled by permitting two or three persons including Abhiram Das, Ram Shukal Das and Sudarshan Das to offer bhog to the idol inside the disputed structure; and
(h) By an application dated 21 December 1962, Late Baba Abhiram Das applied for permission before the receiver for organising the program of 62 jayanti Samaroh. It is stated that the said Samaroh had been held each year and organised by Late Baba Abhiram Das and Janam Bhoomi Sewa Samiti.
404. The dispute inter se between Nirmohi Akhara and Nirvani Ani Akhara is not the subject matter of the existing dispute. Nirvani Ani Akhara has not pursued any proceedings of its own to establish its claim. The claim that Nirmohi Akhara was a shebait has been rejected. In discussing Nirmohi Akhara’s claim, it has been held that to establish a claim as a shebait or even as a de facto shebait, one needs to rely on evidence that indicates more than a mere act of performing the functions of a priest. A pujari is merely a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted ceremonies over a period of time. All the evidence relied upon to support the claim of Late Baba Abhiram Das is restricted to his having performed puja at the disputed premises and does not confer any shebaiti rights.
N. 7 Limitation in Suit 5
405. The cause of action leading to the institution of Suit 5 has been pleaded in paragraphs 14, 18, 30 and 36 of the plaint which read as follows:
“14.That the plaintiff Deities and their devotees are extremely unhappy with the prolonged delay in the hearing and disposal of the said suits and the deteriorating management of the affairs of the Temple, particularly the way the money offered by the worshippers, who come in great numbers, is being misappropriated by the Pujaries and other Temple staff, and the receiver has not controlled this evil. Further devotees of the Plaintiff Deities are desirous of having a new Temple constructed, befitting their pristine glory, after removing the old structure at Sri Rama Janam Bhumi, Ayodhya.
…
18. That although the aforesaid suits have been pending trial for such an extraordinarily long number of years, they are inadequate and cannot result in a settlement of the dispute which led to their institution or the problems arising there from, in as much as neither the presiding Deity of Bhagwan Sri Rama Virajman nor the Asthan Sri Rama Janma Bhumi, the Plaintiffs Nos. 1 and 2 herein, who are both juridical persons, were impleaded therein, although they have a distinct personality of their own, separate from their worshippers and sewaks, and some of the actual parties thereto, who are worshippers, are to some extent involved in seeking to gratify their personal interests to be served by obtaining a control of the worship of the Plaintiff Deities. Moreover, the events which have occurred during these four decades, and many material facts and points of law require to be pleaded from the view point of the Plaintiff Deities, for a just determination of the dispute relating to Sri Rama Janma Bhumi, Ayodhya, and the land and buildings and other things appurtenant thereto. The Plaintiffs have been accordingly advised to file a fresh suit of their own.
…
30. That the Hindu Public and the devotees of the Plaintiff Deities, who had dreamed of establishing Ram-Rajya in Free India, that is, the rule of Dharma and righteousness, of which Maryada Purushottam Sri Ramchandra Ji Maharaj was the epitome, have been keenly desirous of restoring his Janamsthan to its pristine glory, as a first step towards that national aspiration given to us by Mahatma Gandhi. For achieving this, they are publicly agitating for the construction of a grand Temple in the Nagar style. Plans and a model of the proposed Temple have already been prepared by the same family of architects who built the Somnath Temple. The active movement is planned to commence from September 30, 1989, and foundation stone of the new Temple building, it has been declared, shall be laid on November, 9, 1989.
…
36. That the cause of action for this suit has been accruing from day to day, particularly since recently when the plans of Temple reconstruction are being sought to be obstructed by violent action from the side of certain Muslim Communalists.” (Emphasis supplied)
The above averments of the cause of action comprise of the following components:
(i) A prolonged delay in the hearing and disposal of Suits 1, 3 and 4;
(ii) Deterioration in the management of the affairs of the temple and the failure of the receiver to control it;
(iii) Offerings by the worshippers have been misappropriated by the pujaris and temple staff;
(iv) The first and second plaintiffs who are claimed to be juridical persons were not impleaded as parties to the earlier suits;
(v) The worshippers and sevaks and some of the parties to the suits are seeking to pursue their own personal interest in seeking control of the worship of the deities;
(vi) Hindu devotees have been agitating for the construction of a new temple for which plans have been prepared; and
(vii) Plans for reconstruction are sought to be obstructed “by violent action from the side of certain Muslim communalists”.
406. Suit 5 was instituted for “a declaration that the entire premises of Sri Ram Janmabhumi at Ayodhya, as described and delineated in Annexures I, II and III belong to the plaintiff deities” and for a consequential perpetual injunction. Annexures I, II and III were described in paragraph 2 of the plaint as “two site plans of the building premises and of the adjacent area known as Sri Rama Janma Bhumi, prepared by Shiv Shankar Lal Pleader … along with his Report dated 25.05.1950.” After the decision of the Constitution Bench of this Court in Dr M Ismail Faruqui v Union of India238, the dispute has been circumscribed to the area comprised in the inner and outer courtyards.
Suit 5 was instituted on 1 July 1989, on which date, the Limitation Act 1963 was in force.
Submissions
407. Setting up the bar of limitation, Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the Sunni Central Waqf Board, canvassed the following propositions:
(a) Section 10 of the Limitation Act 1963 has no application to the present case since the provision applies to a suit against a person in whom
property has become vested in trust for any specific purpose, or his legal representative or assigns (other than for lawful consideration) for following in his or their hands the property or the proceeds thereof or for an account of the property or proceeds;
(b) The suit could not have been instituted when the deity was being “well represented” through its shebait – the Nirmohi Akhara – and no removal of the shebait has been sought on account of a grievance bearing on misconduct;
(c) The defence that a deity is a perpetual minor will not aid the plaintiffs in Suit 5 for the reason that the deity was represented by the shebait and a suit can be instituted by a worshipper as a next friend only when the shebait is found to have acted adversely to the interest of the deity. However, no allegation has been made by the next friend against the shebait;
(d) It is a settled principle of law that limitation runs against a perpetual minor; and
(e) Suit 5 is not maintainable as there was no cause of action for instituting it. Even otherwise, whichever provisions of the Limitation Act are applicable, Suit 5 would be barred by limitation.
On 23 September 2019, Dr Dhavan during the course of his oral submissions responded to the submissions of Mr Parasaran on limitation. While doing so, Dr Dhavan proceeded on the basis that Mr Parasaran had sought the benefit of Section 10 of the Limitation Act in submitting that the suit was within limitation. Subsequently, on 24 September 2019, in the fair tradition of the Bar of this Court, Dr Dhavan clarified that he was informed by Mr Parasaran that he was not taking the benefit of Section 10 and did not make a submission seeking the benefit of that provision. Dr Dhavan hence urged that the submissions under Section 10 be read as submissions urged by him.
408. Mr Parasaran urged that the contentions of Dr Dhavan, appearing for the Defendant-Sunni Waqf Board proceed on the footing that the plaintiffs are not juridical persons and that the Mahant of Nirmohi Akhara is a valid shebait both for the first and second plaintiffs. On the issue of limitation, the three judges of the Allahabad High Court unanimously held in favour of the plaintiffs (except that Justice S U Khan did not determine as to whether the second plaintiff is a juristic person). Hence, Mr Parasaran urged that the issue of limitation would depend upon the findings of this Court on issues 1,6 and 8239 in Suit 5 and in the event that these issues are held in favour of the plaintiffs in Suit 5, the attack of the defendants to the suit being barred by limitation would, in consequence, fail.
409. At the outset, it is necessary to record that in the course of the present judgment, it has been held that:
(i) Nirmohi Akhara has failed to establish its case of being a shebait;
(ii) As a consequence of (i), the challenge to the maintainability of Suit 5 on the ground that it was only Nirmohi Akhara as shebait which could have instituted the Suit must fail; and
(iii) The first plaintiff in Suit 5 is a juristic person.
The issue of limitation would hence be addressed on the basis of the above position.
Essentially, the Sunni Central Waqf Board in the course of its submissions sought to assail the findings of the High Court on limitation on three broad grounds:
(i) Suit 5 could not have been instituted when the deity was being ‘well represented’ through its shebait against whose conduct there is no grievance and since the removal of the shebait has not been sought;
(ii) The defence of the deity being a perpetual minor cannot aid the plaintiffs since the deity was being represented by a shebait and a suit by a next friend can lie only when the shebait has acted adverse to the interest of the deity; and
(iii) It is a settled principle of law that a deity is not a minor for the purpose of limitation.
The first and the second grounds noted above now stand concluded by the finding that Nirmohi Akhara was not a shebait and hence Suit 5 has been held to be maintainable at the behest of the next friend.
The issue which then falls for consideration at this stage, is as to whether Suit 5 can be held to be within limitation on the ground that a deity is a perpetual minor. This submission of Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the plaintiff in Suit 5, it is again necessary to reiterate would govern the first plaintiff alone which has been held to be a juristic person.
A statute of repose
410. The law of limitation is embodied in a statute which is based on the principles of repose or peace, as held by this Court in Pundlik Jalam Patil v Executive Engineer, Jalgoan Medium Project240:
“An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order…”
The applicability of the provisions of the Limitation Act cannot be extended by analogy or implication. The right to claim in perpetuity is embodied in a specific situation which is referred to in Section 10 and the ambit of the provision cannot be extended as a matter of implication. Before 1929, Section 10 was cast in the following terms:
“10. Suits against trustees and their representatives. – Notwithstanding anything contained in the foregoing provions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof or for an account of such property or proceeds, shall be barred by any length of time.”
Section 10 was amended by the introduction of an explanation by the Indian Limitation (Amendment) Act 1929 (1 of 1929). As amended, the provision came to read as follows:
“10. Suits against express trustees and their representatives. – Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof or for an account of such property or proceeds, shall be barred by any length of time.
Explanation : For the purposes of this section any property comprised in Hindu, Mohammedan, Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.”
411. The background of the amendment is understood by considering the decision of the Privy Council in Vidya Varuthi Thirtha v Balusami Ayyar241. Dealing with the alienation of property, the decision had wider implications which led to the statutory changes which were brought in 1929. The Privy Council held:
“From the above review of the general law relating to Hindu and Mahommedan pious institutions it would prima facie follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a “trustee” to whom property has been “conveyed in trust” and who by virtue thereof has the capacity vested in him which is possessed by a “trustee” in the English law. Of course, a Hindu or a Mahommedan may “convey in trust” a specific property to a particular individual for a specific and definite purpose, and place himself expressly under the English law when the person to whom the legal ownership is transferred would become a trustee in the specific sense of the term.”
(Emphasis supplied)
Alienation by a manager was held not to constitute an act of a trustee to whom property had been conveyed in trust in the same sense in which the expression was used in English law. As a result of the amendment of 1929, a deeming fiction was introduced consequent upon which property comprised in a Hindu, Mohammedan or Buddhist religious or charitable endowments was deemed to be property vested in trust for a specific purpose.
Section 10 applies to suits filed against:
(i) A person in whom property has become vested in trust for a specific purpose; and
(ii) Legal representatives and assigns of such a trustee.
However, it does not cover assigns of such a trustee for valuable consideration. The suit can be filed for the purpose of:
(i) Following in the hands of the trustee such property;
(ii) Following in the hands of the trustee the proceeds of such property; and
(iii) For an account of such property or proceeds.
Significant in the opening words of Section 10 is the absence of the words “by or against”. The Section, in other words, does not apply to suits by a trustee against third parties. (See also in this context, the decision of a Division Bench of the Madras High Court in Palaniandi Gramani Manickammal v V Murugappa Gramani242). Section 10 has no application to Suit 5.
The argument of perpetual minority
412. Mr C S Vaidyanathan, learned Senior Counsel, urged that the idol is a minor by legal fiction. Hence, no adverse title can be acquired against a minor. Dr Rajeev Dhavan, learned Senior Counsel, submitted that although a deity is treated as a minor because of its inability to sue except through a human agency, a deity is not a minor for the purposes of limitation. He submitted that the dictum in Bishwanath v Sri Thakur Radha Ballabhji243 that a deity is a perpetual minor was not made in the context of limitation.
413. In Bishwanath, this Court was tasked with deciding whether a worshipper can maintain a suit for eviction on behalf of the idol if the shebait acts adversely to the interest of the idol. Chief Justice Subba Rao, speaking for a two-judge bench of this Court, held thus:
“10. The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait’s duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment…”
(Emphasis supplied)
414. The suit in that case was instituted by Shri Thakur Radha Ballabhji, the deity represented by a next friend for possession of immoveable property and for mesne profits. The case of the plaintiff was that the second defendant, who was the Sarvarakar and manager, had alienated the property to the first defendant and the sale not being for necessity or for the benefit of the idol was not binding on the deity. Both the trial court and on appeal, the High Court held that the sale was not for the benefit of the deity and the consideration was not adequate. But it was urged that the suit for possession could only have been filed by the shebait and none else could represent the deity. It was in that context, that this Court held that on principle there was no reason to deny to a worshipper a locus to institute a suit challenging the alienation when the shebait had acted adversely to the interest of the deity. The observation that the idol is in the position of a minor was not made in the context of the provisions of the Limitation Act. The observation was in the context of deciding whether a suit by a worshipper was maintainable when the manager had dealt with the property adverse to the interest of the deity. The dictum that the idol is in the position of a minor cannot be construed to mean that the idol is exempt from the application of the Limitation Act 1963.
415. In B K Mukherjea’s “The Hindu Law of Religious and Charitable Trust”244, the position of law has been thus summarised:
“A Hindu Idol is sometimes spoken of as a perpetual infant, but the analogy is not only incorrect but is positively misleading. There is no warrant for such doctrine in the rules of Hindu law and as was observed by Rankin, C.J. In Surendra V. Sri Sri Bhubaneswari, it is an extravagant doctrine contrary to the decision of the Judicial Committee in such cases as Damodar Das Vs. Lakhan Das. It is true that the deity like an infant suffers from legal disability and has got to act through some agent and there is a similarity also between the powers of the shebait of a deity and those of the guardian of an infant. But the analogy really ends there. For purposes of Limitation Act the idol does not enjoy any privilege and regarding contractual rights also the position of the idol is the same as that of any other artificial person. The provisions of the Civil Procedure Code relating to suits by minors or persons of unsound mind do not in terms at least apply to an idol; and to build up a law of procedure upon the fiction that the idol is an infant would lead to manifestly undesirable and anomalous consequences.”245 (Emphasis supplied)
These are prescient words of a visionary judge. Over the years, Courts have elucidated on the juristic character of the idol as a minor and the consequences of this legal fiction.
416. In 1903-4, the Privy Council in Maharaja Jagadindra Nath Roy Bahadur v Rani Hemanta Kumari Debi246 dealt with a case where the plaintiff, in his capacity as the shebait of an idol, had instituted suits for proprietary rights in certain property. The High Court held that the idol being a juridical person capable of holding property, limitation started running against him from the date of the transfer and hence the suit by the shebait was barred by limitation.
The Privy Council concurred with the judges of the High Court that being a juridical person, the idol was capable of holding property. However, limitation was saved because when the cause of action arose, the shebait to whom the possession and management of the dedicated property belonged, was a minor. Hence, the Privy Council held that the right to institute a suit for the protection of the property vested in the idol could be brought within three years of the attainment of majority of the shebait. Sir Arthur Wilson observed:
“But assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belong to the sebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the sebait, not in the idol. And in the present case the right to sue accrued to the plaintiff when he was under age. The case therefore falls within the clear language of s. 7 of the Limitation Act, which says that, “If a person entitled to institute a suit… be, at the time from which the period of limitation is to be reckoned, a minor,” he may institute the suit after coming of age within a time which in the present case would be three years.”
(Emphasis supplied)
The basis for holding that suit to be within limitation was not that the idol was not subject to the law of limitation but that the shebait was a minor on the date of the accrual of the course of action. The suit could be instituted within three years of the shebait attaining majority.
417. In 1909-10 a judgment was rendered by the Privy Council in Mahant Damodar Das v Adhikari Lakhan Das247 where there was a dispute between the senior chela and junior chela of a Mutt with regard to succession after the Mahant passed away. This was settled by an ikrarnama dated 3 November 1874. Under the ikrarnama, a math at Bhadrak was allotted in perpetuity to the senior chela and his successors, while a math at Bibisarai and the properties annexed to it were allotted to the junior chela in the capacity of an ‘adhikari’, subject to an annual payment of Rs. 15 towards the expenses of the Bhadrak math. After the death of the senior chela, a suit was instituted by his successor for possession of the math at Bibisarai. It was contended that the property was dedicated to the worship and service of the plaintiff’s idol and was held by the junior chela in the capacity of an adhikari. The respondent set up limitation as a defence claiming that neither the plaintiff nor his predecessors had been in possession of the disputed property within twelve years prior to the institution of the suit. The trial court held that the suit was not barred by limitation, but the High Court reversed the decree on the ground that the respondent had held the disputed mutt adversely for more than twelve years. The Privy Council rejected the plea of the senior chela that the cause of action arose on the death of the senior chela and affirmed the ruling of the High Court that the suit was barred by limitation, having been instituted within twelve years of the death of the senior chela, but twenty seven years after the ikrarnama. Sir Arthur Wilson held thus:
“The learned Judges of the High Court have rightly held that in point of law the property dealt with by the ekrarnama was prior to its date to be regarded as vested not in the Mohant, but in the legal entity, the idol, the Mohant being only his representative and manager. And it follows from this that the learned Judges were further right in holding that from the date of the ekrarnama the possession of the junior chela, by virtue of the terms of that ekrarnama, was adverse to the right of the idol and of the senior chela, as representing that idol, and that, therefore, the present suit was barred by limitation.”
(Emphasis supplied)
Though the above observations did not specifically deal with whether an idol could be regarded as a perpetual minor, the Privy Council held in clear terms that the plea of adverse possession as against the right of the idol was available and that therefore the suit was barred by limitation.
418. In Chttar Mal v Panchu Lal248, a Division Bench of the Allahabad High Court considered whether an idol suffers a disability of being a perpetual minor and hence a suit by an idol at any period of time after the date of the transfer would be saved from the bar of limitation under Section 7 of the Limitation Act. The argument was premised on the following opinion put forth in the fifth edition of Sastri’s “Hindu Law”249:
“As regards limitation it should be considered whether section 7 of the Limitation Act is not applicable to a suit to set aside an improper alienation by a sebait of the property belonging to a Hindu god. As the god is incapable of managing his property he should be deemed a perpetual minor for the purpose of limitation.”
The Division Bench, however, held:
“…With respect, it may be pointed out that in a transfer by a minor the question of a proper or improper alienation would not arise. Under the Contract Act a transfer by a minor would be void and not only voidable: Mohori Bibee v. Dharmodas Ghose [(1902) I.L.R., 30 Calc., 539.]. If the rule were enforced the property of a god would not fetch any money in the market when need arose to transfer it for the benefit of the temple where the idol may be installed…We have clear authority, therefore, in refusing to accept the plaintiff’s argument.”
In adopting this view, the Division Bench of the High Court relied on the decisions of the Privy Council in Maharaja Jagadindra Nath and in Damodar Das.
419. The fiction of perpetual minority was adopted by a Division Bench of the Madras High Court in Rama Reddy v Rangadasan250. In that case, the plaintiff had instituted a suit in 1918 as the pujari and trustee of the suit temple to recover possession of property granted to an ancestor of the plaintiff as manager of the temple. The disputed property had been sold by defendant nos 1 and 2 (the father and uncle of the plaintiff) to defendant no 3 in 1893. It was the contention of the plaintiff that the property had been granted as service inam to their family for rendering service as a pujari and the alienation was not valid. The District Munsif dismissed the suit as barred by limitation and on appeal, the Subordinate Judge reversed and remanded the suit. The District Munsif again dismissed the suit and on appeal, the District Judge confirmed the decree. The lower appellate court found that the plaintiff was the pujari or trustee of the suit property and held that the suit property was attached to the temple. The plaintiff preferred a second appeal, which was heard by a Single Judge, who held that the suit was not barred by limitation. In a Letters Patent Appeal preferred against the decree of the Single Judge, the Division Bench was to determine whether the suit was barred by Article 134 or 144 of the Limitation Act.
420. The High Court noted the decision in Vidya Varuthi Thirtha v Balusami Ayyar251 where the Privy Council held that a permanent lease of mutt property could not create any interest in the property to subsist beyond the life of the grantor and consequently, Article 134 would not apply to a suit brought by the successor of the grantor for the recovery of the property. The High Court held that a trustee cannot convey a valid title to the transferee, hence Article 134 would not apply. The High Court noted that the principle of adverse possession would apply to cases where a person who could assert his title does not do so within the period stipulated under Article 144 of the Limitation Act. With respect to the property of an idol, Justice Devadoss held thus:
“The legal fiction is that an idol is a minor for all time and it has to be under perpetual tutelage and that being so, it cannot be said that the idol can ever acquire majority, and a person who acquires title from a trustee of a temple cannot acquire any title adverse to the idol, for the idol is an infant for all time and the succeeding trustee could recover the property for the idol for any time.”
The High Court held that the manager cannot set up an adverse title to the property of the idol. It was concluded that in consequence, the manager by his act cannot allow a person who derives title from him to assert an adverse title.
In Surendrakrishna Roy v Shree Shree Ishwar Bhubaneshwari Thakurani252, a Division Bench of the Calcutta High Court held that when the property dedicated to an idol has been held adversely to another and there is no fiduciary relationship with the idol, limitation would run and be governed by Article 144 of the Act. Chief Justice Rankin, on the issue of perpetual minority, held thus:
“21. The doctrine that an idol is a perpetual minor is, in my judgment an extravagant doctrine contrary to the decision of the Judicial Committee in such cases as Damodar Das v. Lakhan Das[ (1910) 37 Cal 885 : 37 IA 5147 : 7 IC 240 (PC).] . It is open to shebaits or any person interested in an endowment to bring a suit to recover the idol’s property for debuttar purposes…”
(Emphasis supplied)
The decision of the High Court was affirmed by the Privy Council in Sri Sri Iswari Bhubaneshwari Thakurani v Brojonath Dey.253
421. In The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar254, the Privy Council considered whether a mosque can be considered a juristic person and can be subject to adverse possession. Sir George Rankin observed:
“That there should be any supposed analogy between the position in law of a building dedicated as a place of prayer for Muslims and the individual deities of the Hindu religion is a matter of some surprise to their Lordships. The question whether a British Indian Court will recognise a mosque as having a locus standi in judicio is a question of procedure. In British India the Courts do not follow the Mahomedan law in matters of procedure [cf. Jafri Begum v. Amir Muhammad Khan [I.L.R. 7 All. 822 at pp. 841, 842 (1885).] , per Mahmood, J.] any more than they apply the Mahomedan criminal law of the ancient Mahomedan rules of evidence. At the same time the procedure of the Courts in applying Hindu or Mahomedan law has to be appropriate to the laws which they apply. Thus the procedure in India takes account, necessarily, of the polytheistic and other features of the Hindu religion and recognises certain doctrines of Hindu law as essential thereto, e.g., that an idol may be the owner of property. The procedure of our Courts allows for a suit in the name of an idol or deity though the right of suit is really in the sebait [Jagadindranath v. Hemmta Kumari [L.R. 31 I.A. 203 : s.c. 8 C.W.N. 609 (1605).] ]. Very considerable difficulties attend these doctrines—in particular as regards the distinction, if any, proper to be made between the deity and the image [cf. Bhupati Nath v. Ram Lal [I.L.R. 37 Cal. 128, 153: s.c. 14 C.W.N. 18 (1910).] , Golapchandra Sarkar, Sastri’s “Hindu Law,” 7th Ed., pp. 865 et seq.]. But there has never been any doubt that the property of a Hindu religious endowment— including a thakurbari—is subject to the law of limitation [Damodar Das v. Lakhan Das [L.R. 37 I.A. 147 : s.c. 14 C.W.N. 889 (1810).] and Sri Sri Iswari Bhubaneshwari Thakurani v. Brojo Nath Dey [L.R. 64 I.A. 203 : s.c. 41 C.W.N. 968 (1937).] ]. From these considerations special to Hindu law no general licence can be derived for the invention of fictitious persons…”
(Emphasis supplied)
It was concluded thus:
“The property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of the mutawali to possession for the purposes of the waqf came to an end under Art. 144 of the Limitation Act and the title derived under the dedication from the settlor or wakif became extinct under sec. 28. The property was no longer, for any of the purposes of British Indian Courts, “a property of God by the advantage of it resulting to his creatures…”
In a decision of a Division Bench of the Calcutta High Court in Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila Thakur255, Nasim Ali J noted the similarities and points of distinction between the position of a minor and an idol in Hindu Law:
“The points of similarity between a minor and a Hindu idol are: (1) Both have the capacity of owning property. (2) Both are incapable of managing their properties and protecting their own interests. (3) The properties of both are managed and protected by another human being. The manager of a minor is his legal guardian and the manager of an idol is its shebait. (4) The powers of their managers are similar. (5) Both have got the right to sue. (6) The bar of S. 11 and Order 9, R. 9, Civil P.C., applies to both of them.
The points of difference between the two are: (1) A Hindu idol is a juristic or artificial person but a minor is a natural person. (2) A Hindu idol exists for its own interest as well as for the interests of its worshippers but a minor does not exist for the interests of anybody else. (3) The Contract Act (Substantive law) has taken away the legal capacity of a minor to contract but the legal capacity of a Hindu idol to contract has not been affected by this Act or by any other statute. (4) The Limitation Act (an adjective law) has exempted a minor from the operation of the bar of limitation but this protection has not been extended to a Hindu idol.
From the above it is clear that there is some analogy between a minor and a Hindu idol but the latter is neither a minor nor a perpetual minor.”
(Emphasis supplied)
Before the Orissa High Court in Radhakrishna Das v Radharamana Swami256, a suit had been instituted by the next friend of the deity for a decree directing the restoration of the plaintiff deity to its original place of consecration. The Division Bench of the High Court held that an idol cannot be regarded a perpetual minor for the purposes of limitation and rejected the contention of the plaintiff that the deity’s right to be located at its temple is a continuing right on account of the incapacity of the deity to act on its behalf. The Division Bench held:
“…An idol is no doubt in the position of an infant as it can act only through a sebayat or a manager. But no authority has been cited to us for the proposition that he is to be regarded as a perpetual infant, so that transactions by or against him will not by governed by the Limitation Act.
The doctrine that an idol is a perpetual minor is an extravagant doctrine as it is open to the sebayat, or any person in an endowment, to bring a suit to recover the idol’s property for devottar purposes. An idol, therefore, is as much subject to the law of limitation as a natural person and cannot claim exemption on the ground that he is a perpetual infant. Nor is a Hindu deity to be regarded as a minor for all purposes. An idol cannot, therefore, claim exemption from the law of limitation.”
The legal fiction of a deity as a minor has been evolved to obviate the inability of the deity to institute legal proceedings on its own. A human agent must institute legal proceedings on behalf of the deity to overcome the disability. However, the fiction has not been extended to exempt the deity from the applicability of the law of limitation.
422. In the present case, it has been established that there was no de-facto or de-jure shebait acting on behalf of the deity. Therefore, it is appropriate to refer to judgements of this Court regarding the “right of suit” as vested in the shebait and the consequence of the absence of a shebait on the application of the Limitation Act to the adverse possession of debutter property. “In Rai Sahib Dr Gurdittamal Kapur v Mahant Amar Das Chela Mahant Ram Saran257, this Court dealt with a case where a suit was filed in 1957 by the first respondent, who was a newly appointed Mahant of Akhara Nirbansar of Sultanwind Gate, Amritsar. The second respondent was removed as a Mahant in proceedings under Section 92 of the Civil Procedure Code and the first respondent was subsequently appointed in his place. It was alleged that the alienation of property by the second respondent was unauthorised as the transfer was not for legal necessity or for the benefit of the estate. Moreover, it was contended that the fact that the appellant was in possession of the land for more than twelve years made no difference and since the land was trust property, a suit for its recovery could be brought within twelve years from the date of death, resignation or removal of the manager of such a property. A three judge Bench of this Court held that the suit filed by the first respondent was liable to be dismissed since the appellant had been in adverse possession for more than twelve years. Speaking for this Court, Justice J R Mudholkar held that for the purposes of Section 144 of the Act, adverse possession is to be computed from the “effective possession” of the appellant as a result of the sale:
“12…The law on the subject has been stated very clearly at pp. 274 and 275 in Mukherjea’s Hindu Law of Religious and Charitable Trust, 2nd Edn. It is pointed out that in the case of an execution sale of debutter property it is not the date of death of the incumbent of the Mutt but the date of effective possession as a result of the sale from which the commencement of the adverse possession of the purchaser is to be computed for the purposes of Article 144 of the Limitation Act… Thus if Respondent 2 could be said to have represented the Akhara in the two earlier suits, decrees made in them would bind Respondent 1 as he is successor in office of Respondent 2. On the other hand if Respondent 2 did not represent the Akhara, the possession of the appellant under the decree passed in these suits would clearly be adverse to the Akhara upon the view taken in the two decisions of the Privy Council just referred to. The first respondent’s suit having been instituted after the appellant has completed more than 12 years of adverse possession must, therefore be held to be barred by time. For these reasons disagreeing with the courts below we set aside the decrees of the courts below and instead dismiss the suit of Respondent 1 with costs in all the courts.”
(Emphasis supplied)
423. In a subsequent decision of this Court in Sarangadeva Periya Matam v Ramaswami Goundar(Dead) by Legal Representatives258, the Mathadhipathi had granted a perpetual lease of a portion of the disputed property to the grandfather of the plaintiffs on annual rent. Since 1883 when the lease was granted and until January 1950, the respondents were in uninterrupted possession of the property. In 1915, the Mathadhipathi died without a successor and the plaintiffs did not pay any rent. Between 1915 and 1939, there was no Mathadhipathi and some person was in management of the Math for twenty years. A Mathadhipathi was elected in 1939. In 1928, the Collector of Madurai passed an order to resume the Inam lands, and directed full assessment of the lands and payment of the assessment to the Math for its upkeep. After resumption, a joint patta was issued in the name of the plaintiff and other persons in possession of the lands. The respondents continued to possess the suit lands until January 1950 when the Math obtained possession. On 18 February 1954, the respondents instituted the suit against the Math represented by its then Mathadhipathi and an agent of the math claiming recovery of possession of the suit lands. The Trial Court decreed the suit. In appeal, the District Judge set aside the decree and dismissed the suit. In second appeal, the High Court of Madras restored the decree of the Trial Court. The respondent contended that he had acquired title to the lands by adverse possession and by the issue of a ryotwari patta in his favour on the resumption of the Inam. The appellant contended that the right to sue for the recovery of the Math properties vests in the legally appointed Mathadhipathi and adverse possession against him would not run until his appointment. A three judge Bench of this Court noted that like an idol, a Math is a juristic person which must act through a human agency and a claim of adverse possession was maintainable against it:
“6. We are inclined to accept the respondents’ contention. Under Article 144 Indian Limitation Act, 1908, limitation for a suit by a math or by any person representing it for possession of immovable properties belonging to it runs from the time when the possession of the defendant becomes adverse to the plaintiff. The math is the owner of the endowed property. Like an idol, the math is a juristic person having the power of acquiring, owning and possessing properties and having the capacity of suing and being sued. Being an ideal person, it must of necessity act in relation to its temporal affairs through human agency… It may acquire property by prescription and may likewise lose property by adverse possession. If the math while in possession of its property is dispossessed or if the possession of a stranger becomes adverse, it suffers an injury and has the right to sue for the recovery of the property. If there is a legally appointed mathadhipathi, he may institute the suit on its behalf; if not, the de facto mathadhipathi may do so, see Mahaleo Prasad Singh v. Koria Bharti [(1934) LR 62 IA 47, 50] ; and where, necessary, a disciple or other beneficiary of the math may take steps for vindicating its legal rights by the appointment of a receiver having authority to sue on its behalf, or by the institution of a suit in its name by a next friend appointed by the Court. With due diligence, the math or those interested in it may avoid the running of time. The running of limitation against the math under Article 144 is not suspended by the absence of a legally appointed mathadhipathi; clearly, limitation would run against it where it is managed by a de facto mathadhipathi. See Vithalbowa v. Narayan Daji Thite [(1893) ILR 18 Bom 507, 511] , and we think it would run equally if there is neither a de jure nor a de facto mathadhipathi.”
(Emphasis supplied)
Justice R S Bachawat held that when possession of the property became adverse, limitation against the Math would run even in the absence of a de jure or de facto Mathadhipathi. While noting the decision of the Privy Council in Maharaja Jagadindra Nath, this Court declined to extend the principle that the
“right to sue for possession” is to be divorced from the “proprietary right” to the property which is vested in the idol:
“8… in giving the benefit of Section 7 of the Indian Limitation Act, 1877 to the shebait, the Privy Council proceeded on the footing that the right to sue for possession is to be divorced from the proprietary right to the property which is vested in the idol. We do not express any opinion one way or the other on the correctness of Jagadindra Nath Roy case [ILR 32 cal 129, 141] . For the purposes of this case, it is sufficient to say that we are not inclined to extend the principle of that case. In that case, at the commencement of the period of limitation there was a shebait in existence entitled to sue on behalf of the idol, and on the institution of the suit he successfully claimed that as the person entitled to institute the suit at the time from which the period is to be reckoned, he should get the benefit of Section 7 of the Indian Limitation Act, 1877. In the present case, there was no mathadhipathi in existence in 1915 when limitation commenced to run. Nor is there any question of the minority of a mathadhipathi entitled to sue in 1915 or of applying Section 6 of the Indian Limitation Act, 1908.”
Decision of the High Court
424. On the aspect of whether a deity can be regarded as a perpetual minor, Justice S U Khan held that an idol of a deity is not a perpetual minor for the purpose of limitation and debutter property can be lost through adverse possession. The view of the learned Judge was that the observation in Bishwanath v Sri Thakur Radha Ballabhji259 that an idol is in the position of a minor was not in the context of the law of limitation. On the contrary, in the view of the learned Judge, the decisions in Dr Gurdittamal Kapur and Sarangadevi Periya Matam were of three judge Benches (Bishwanath, being decided by a Bench of two judges). Both the three judge Bench decisions supported the view that the law of limitation would be applicable. Moreover, the Privy Council in Masjid Shahidganj v Shiromani Gurdwara Prabandhak Committee, Amritsar260 had noted that there had never been any doubt that the property of a Hindu religious endowment is subject to the law of limitation.
Justice Sudhir Agarwal, on the other hand was of the view that though the suit as it was earlier filed, pertained to a wider area, the extent of the dispute (following the judgment of this Court in Ismail Faruqui) was confined to the inner and outer courtyards. In the view of Justice Agarwal, this being the birth-place of Lord Ram which Hindus had been visiting since time immemorial and the deity being “in the form of a place” it “can never be destroyed nor could be destructed”. Hence, if the deity claims a declaration from the court, the plea of limitation would not be applicable and there was no reason to take recourse to Section 6 or Section 7 of the Limitation Act.
Justice D V Sharma relied upon the decision in Bishwanath and came to the conclusion that a deity is a minor for the purposes of Section 6 of the Limitation Act and extending the benefit available to a minor to a deity would do no injustice to the world at large.
425. The analysis of the legal position on the applicability of the law on perpetual minority by Justice S U Khan commends itself. Based on the judicial precedents analysed above, it is an established position that a deity cannot on the ground of being a perpetual minor stand exempted from the application of the Limitation Act. The submission which was urged by Mr C S Vaidyanathan is contrary to the jurisprudence of close to a century on the issue. We follow the line of precedents emanating from the Privy Council, this Court and several High Courts noted earlier. The applicability of the law of limitation cannot be ruled out on the basis of the theory of perpetual minority.
For the reasons which we have been already been adduced above, the reasons which weighed with Justice Sudhir Agarwal and Justice DV Sharma while construing the applicability of the Limitation Act are incorrect. The decision of the two judge Bench in Bishwanath did not deal with the issue of the applicability of the Limitation Act and the observations that a deity is a minor cannot be extended by implication to create an exemption to the applicability of the law of limitation. Such an extension would be contrary to the consistent precedents emanating from the Privy Council as well as in the decisions of this Court and the High Courts. Justice D V Sharma has read into the provisions of Section 6 of the Limitation Act that the same principle which applies to a minor also applies to a deity. Such an extension cannot be arrived at by implication or by interpretation.
Limitation in Suit 5
426. Each of the three judges of the Allahabad High Court furnished reasons of their own in holding that Suit 5 was within limitation. Justice S U Khan dealt with limitation in one consolidated analysis and furnished five reasons of which the first and the fifth were held to be applicable to Suit 5. According to the learned Judge:
(i) The Magistrate by keeping the proceedings under Section 145 pending indefinitely, acted in excess of jurisdiction. Consequently, no final order was passed in the Section 145 proceedings. By not doing so, it was held that the bar of limitation would not arise; and
(ii) The court in any event was required to return a finding under Order XIV on all issues.
Justice Sudhir Agarwal held that the plea of limitation in Suit 5 must be understood in the context of the following facts:
(i) The place in dispute is believed by Hindus to be the birth-place of Lord Ram and has been worshipped as such since time immemorial;
(ii) A non-Hindu structure in the nature of a mosque was raised at the command of the Muslim ruler before the visit of Tieffenthaler (1766-71);
(iii) Despite the above construction, Hindus continued to visit it and offer worship according to their belief that it was the birth-place of Lord Ram;
(iv) Though the structure of the building was treated as a mosque it did not impact the beliefs of the Hindus;
(v) Within the premises of the undivided mosque, there was a non-Islamic structure of a Bedi which was noticed by Tieffenthaler in his account;
(vi) Other Hindu structures were added with the passage of time including Sita Rasoi, Ramchabutra and Bhandar;
(vii) These structures were noticed in 1858, 1873, 1885, 1949 and 1950 and continued until the demolition of the entire structure on 6 December 1992;
(viii) Though the entire disputed structure was called a mosque, the British Government recognised the rival claims of both the communities by dividing the disputed area in two parts within which each community could separately offer prayer and worship;
(ix) Despite this division, Hindus not only kept possession of the outer courtyard but continued to enter the inner courtyard in spite of repeated complaints and removal orders fortified by the record between 1858 to 1885;
(x) Treating the disputed structure as a mosque, the British Government allowed a Nankar grant to two Muslims in pursuance of which they claimed to have incurred expenses on the maintenance of the building;
(xi) On 22/23 December 1949, idols of Lord Ram were placed by Hindus in the inner courtyard;
(xii) On 29 December 1949, the inner courtyard was attached under Section 145 in spite of which the Magistrate ensured that worship of the idols placed under the central dome continued after which the civil court passed an order of injunction on 16 January 1950, which was clarified on 19 January 1950, confirmed on 3 March 1951 and which attained finality on 26 April 1955;
(xiii) Since 23 December 1949, worship had continued by the Hindus while on the other hand, no Muslim had entered the premises or offered namaz;
(xiv) Since 29 December 1949, worship by Hindus continued from the iron grill door of the dividing wall and only priests were allowed to enter the premises for worship; and
(xv) The District Judge, by an order dated 1 February 1986, directed the removal of locks and the opening of doors to permit the Hindus to pray to the idols in the inner courtyard.
On the basis of the above facts, Justice Sudhir Agarwal held that worship of the deities had continued and there was no action or inaction in respect of which the plaintiffs could claim a right to sue governed by a particular period of limitation. The learned judge held that in the preceding few hundred years, the only action which may have arisen to adversely affect the interest of the plaintiffs was the raising of the disputed structure. In spite of this, the place in dispute continued to be used by the Hindus for the purposes of worship. On the other hand, there is no mention of any Muslim having offered namaz from the date of the construction until 1856-57. In view of the above facts, there was no action for the Hindus to be aggrieved on a particular date, giving rise to a right to sue for the purposes of limitation. Consequently, the judge held that Suit 5 could not be held to be barred by limitation.
Justice DV Sharma held that the deity is a minor for the purpose of Section 6 of the Limitation Act and came to the conclusion that Suit 5 was within limitation.
427. It now becomes necessary to address the fundamental issue as to whether Suit 5 is barred by limitation. In assessing whether Suit 5 is within or beyond limitation regard must be had to the position that in the remaining suits which were initiated before the Allahabad High Court (Suits 1, 3 and 4), neither of the plaintiffs in Suit 5 were impleaded. The averment in Suit 5 is that both the first and second plaintiffs have a distinct juridical personality of their own. The first plaintiff has a distinct juridical personality independent of the worshippers. In paragraph 18 of the plaint, the plaintiffs aver that some of the parties to the earlier suits who are worshippers are to some extent “involved” in seeking to gratify their personal interests to be served by obtaining control over the worship of the plaintiff deities.
428. Significantly, even after the attachment of the disputed property on 29 December 1949 the sewa-puja of the plaintiff deities continued. Therefore, it cannot be contended that the cause of action in Suit 5 arose on 29 December 1949 and pertains to the obstruction of worship and prayer or the attachment of the disputed property. The pleadings in Suit 5 refers to all the previous suits filed with respect to the disputed property. The defendants in Suit 5 include the plaintiff in Suits 1, 3 and 4, besides Muslim and Hindu parties and the State and its officials. Suit 5 is founded on the plea that as a matter of fact, the interest of the deities was not being safeguarded by the persons or entities who were pursuing the earlier proceedings. When Suit 5 was instituted, the legal personality of the first and second plaintiff had not been adjudicated upon. Upon the institution of Suit 5, the plaintiffs in Suit 3 and Suit 4 expressly denied that the second plaintiff was an independent object of worship and a legal person. Further, the apprehension of the plaintiffs in regard to the interest of the deity of Lord Ram not being protected was abundantly established in the stance which was taken by Nirmohi Akhara in its written statement filed on 14 August 1989. Nirmohi Akhara denied that the plaintiffs were entitled to any relief and set up the plea that the premises mentioned by the plaintiffs belong to Nirmohi Akhara and that the plaintiffs have no right to seek a declaration “against the right and titles of the Nirmohi Akhara”. Indeed, the Nirmohi Akhara construed the suit as “the threat to demolish the temple of the Nirmohi Akhara for which the suit of the Akhara is pending”. Nirmohi Akhara set up the plea that the idol of Lord Ram is installed not at Ram Janmabhumi at Ayodhya but in the temple known as Ram Janmabhumi temple, for whose delivery of charge and management Nirmohi Akhara had filed its suit. In response to the injunctive relief sought by the plaintiffs, Nirmohi Akhara set up the plea that it alone has a right to control, supervise and repair or even to reconstruct the temple if necessary. Nirmohi Akhara set up the plea that the trust which has been set up in 1985 was with an “obvious design” to damage the title and interest of the Nirmohi Akhara. On the maintainability of Suit 5, both the Sunni Central Waqf Board and the Nirmohi Akhara raised similar objections, which have been re-affirmed by their stand taken in the course of the present proceedings. Dr Rajeev Dhavan, leading the arguments for the Sunni Central Waqf Board submitted that though Suit 3 is barred by limitation, that does not extinguish the right of Nirmohi Akhara to pursue its claim as a shebait. It was urged that Nirmohi Akhara being the shebait, Suit 5 is not maintainable. The case of the plaintiffs that the institution of the Suit 5 was necessitated as a result of the deity not being a party to the earlier suits and based on the apprehension that in the existing suits, the personal interests of the leading parties were being pursued without protecting the independent needs and concerns of the deity of Lord Ram, is well and truly borne out by the proceedings as they unfolded in the proceedings before this Court. The cause of action in Suit 5 cannot be considered to be barred by limitation on a proper construction of the basis of the cause of action for the institution of the suit.
The Suit by Nirmohi Akhara (Suit 3) was for management and charge of what it described as the Ram Janmabhumi temple. Its claim of being a shebait had not, as of the date of the institution of Suit 3, been adjudicated. It was not a de-jure shebait (there being no deed of dedication) and its claim of being a de facto shebait had to be established on evidence. Suit 5 is founded on the plea that the needs and concerns of the deity of Lord Ram were not being protected and that the parties to the earlier suits were pursuing their own interests. This apprehension as the basis of Suit 5 is not without substance. For, Nirmohi Akhara in its defence travelled beyond the claim of management and charge, seeking to place reliance on its alleged “right and titles” and its “title and interest” as noted above. The Sunni Central Waqf Board made joint cause with Nirmohi Akhara by supporting the cause of Nirmohi Akhara as a shebait, to buttress its challenge to the entitlement of the deity to protect its interests through a next friend. Nirmohi Akhara has an interest hostile to the deity when it speaks of its own ‘title and interest’. In this backdrop, the cause pleaded in Suit 5 at the behest of the deity of Lord Ram cannot be held to be beyond limitation.
429. Mr Parasaran submitted that Suit 5 essentially looks to the future and for the need to construct a temple dedicated to Lord Ram on the site of Ram Janmabhumi. Dr Dhavan criticised this as well as the constitution of the trust of 1985 and the Nyas as part of a wider agenda which led to the event of 1992. This criticism in our view cannot be factored in while determining whether as a matter of law, Suit 5 is barred by limitation. Simply put, Suit 5 contains a plea that by virtue of the deity not being a party to the earlier suits, its interests and concerns were not being adequately protected in the earlier suits including those instituted by the Hindu parties. The reasons which weighed with Justice Agarwal in holding Suit 5 to be within limitation, to the extent summarised above, commend themselves for acceptance. On the basis of the above discussion, it must be held that Suit 5 is instituted within the period of limitation.
N.8 The Suit of 1885 and Res Judicata
Issues
430. The plea of res judicata hinges on the content and outcome of a suit which was instituted in 1885 by Mahant Raghubar Das seeking a decree for the construction of a temple at Ramchabutra. Specific issues on whether the doctrine of res judicata is attracted were drawn up in Suits 1, 4 and 5, thus:
Suit 1
Issue 5(a):- Was the property in suit involved in Original Suit No. 61/280 of 1885 in the Court of Sub-Judge, Faizabad, Raghubar Das Mahant v Secretary of State for India and others.
Issue 5(b):- Was it decided against the plaintiff.
Issue 5(c):- Was the suit within the knowledge of Hindus in general and were all Hindus interested in the same.
Issue 5(d):- Does the decision bar the present suit by principles of res judicata and in any other way.
Suit 4
Issue 7(a):- Whether Mahant Raghubar Dass, plaintiff of Suit No. 61/280 of 1885 had sued on behalf of Janmasthan and whole body of persons interested in Janmasthan.
Issue 7(b):- Whether Mohammad Asghar was the Mutawalli of alleged Babri Masjid and did he contest the suit for and on behalf of any such mosque.
Issue 7(c):- Whether in view of the judgment in the said suit, the members of the Hindu community, including the contesting defendants, are estopped from denying the title of the Muslim community, including the plaintiffs of the present suit, to the property in dispute; if so, its effect.
Issue 7(d):- Whether in the aforesaid suit, title of the Muslims to the property in dispute or any portion thereof was admitted by plaintiff of the that suit; if so, its effect.
Issue 8- Does the judgment of case No. 6/280 of 1885, Mahant Raghubar Dass v Secretary of State and others, operate as res judicata against the defendants in suit.
Suit 5
Issue 23:- Whether the judgment in Suit No. 61/280 of 1885 filed by Mahant Raghubar Das in the Court of Special Judge, Faizabad is binding upon the plaintiffs by application of the principles of estoppel and res judicata as alleged by the defendants 4 and 5.
The plaint of 1885
431. The Suit of 1885 was instituted by Mahant Raghubar Das, describing himself as “Mahant Janamsthan situated at Ayodhya”. The suit was initially instituted only against the Secretary of State for India. The plaint in the suit of 1885 is as under:
“IN THE COURT OF MUNSIF SAHIB BAHADUR
Mahant Raghubar Das Mahant Janmsthan Situated at Ayodhya
Plaintiff
versus
Secretary of State for India in the Session of Council
Defendant
The plaintiff abovenamed Submit as under:
Suit for grant of permission for construction of Mandir, i.e., prohibition to the defendant that plaintiff should not be restrained from construction of Mandir on chabootra- Janmashtan situated at Ayodhya, North 17 feet, East 21 feet, South 17 feet, West 21 feet and the value of the suit cannot be fixed as per market rate therefore as per Item No. 17, paragraph 6, Appendix-II, Act, 1870, court fee was affixed and the position of the site can be known very well from the attached map/sketch.
Section 1: That the place of janmsthan situated at Ayodhya City, Faizabad is a very old and sacred place of worship of Hindus and plaintiff is the Mahant of this place of worship.
Section 2: That the chabootra janmasthan is East-West 41 feet and North-South 17 feet. Charan Paaduka is fixed on it and small temple is also placed which is worshipped.
Section 3: That the said chabootra is in the possession of the plaintiff. There being no building on it, the plaintiff and other faqirs are put to great hard ship in summer from heat, in the monsoon from rain and in the winter from extreme cold. Construction of temple on the chabootra will cause no harm to anyone. But the construction of temple will give relief to the plaintiff and other faqirs and pilgrims.
Section 4: That the Deputy Commissioner Bahadur of Faizabad from March or April 83, because of the objection of a few Muslims opposed the construction of the mandir, this petitioner sent a petition to the local government regarding this matter where no reply received about this petition. Then the plaintiff sent a notice as required under Section-444 of the Code (of Civil Procedure) on 18th August, 1883 to the office of Secretary, Local Government but this too remained un- replied. Hence the cause for the suit arise from the date of prohibition at Ayodhya under the jurisdiction of the Court.
Section 5: That a well-wishing subject has a right to construct any type of building which it wishes as the land possessed and owned by it. It is the duty of fair and just government to protect its subjects and provide assistance to them in availing their rights and making suitable bandobast for maintenance of law and order. Therefore the plaintiff prays for issue of the decree for construction of temple on chabootra – Janmasthan situated at Ayodhya North 17 feet, East 41 feet, South 17 feet and West 41 feet and also to see that the defendant does not prohibit and obstruct the construction of mandir and the cost of the suit should be ordered to be borne by the defendant.
I Raghubar Das Mahant Janmasthan, Ayodhya Certify that the contents of the plaint and all five points are true and correct to the best of my knowledge and belief.
Signature of Mahant Raghubardas
in Hindi script.”
(Emphasis supplied)
The plaintiff averred that the place of the Janmabhumi is ancient and sacred and is a place of worship for the Hindus. The plaintiff claimed to be the Mahant of this place of worship. The “chabootra janamsthan” was described as admeasuring “East-West 41 feet and North-South 17 feet.”
It was pleaded that there was a Charan Paduka fixed on it and that there was a small temple which was worshipped. The plaintiff claimed to be in possession of the Chabutra. The plaintiff averred that he and other faqirs were inconvenienced in inclement weather and that the construction of a temple “on the Chabutra” would not cause harm to anyone else. However, it was stated that the Deputy Commissioner of Faizabad had opposed the construction of the temple and despite a notice under the Code of Civil Procedure dated 18 August 1883, the government had not taken any action. The basis of the claim was that a “subject” has a right to construct a building on land which is possessed and owned by him.
The defence in 1885
432. Though the Muslims were originally not impleaded as parties to the suit, Mohd Asghar, in his capacity as a Mutawalli applied to be impleaded and was made a party to the suit. In his written statement, Mohd Asghar set up a plea that the mosque was constructed by Babur. He stated that ownership could not be claimed by the plaintiff who had not produced any material originating in the emperor or the ruler of the time in support of the plea. Essentially, the defence was that:
(i) The plaintiff had no title to the Chabutra;
(ii) Ingress and egress for the purposes of worship does not prove ownership;
(iii) The Chabutra came up in 1857; and
(iv) The construction of the Chabutra did not confer any right of ownership and new construction on it had been restrained by the government as a result of which a hut which was set up by a faqir had been demolished.
It was argued that the spot was disputed between the Hindus and Muslims resulting in a communal incident.
Findings
433. In his judgment dated 24 December 1885, the Sub-Judge at Faizabad accepted the possession and ownership of the Hindus of the area surrounding the wall of the Masjid. However, the Sub-Judge held that if permission for the construction of the temple were granted, a serious situation endangering law and order would arise between the two communities. The Sub-Judge held:
“Over and above this, on the temple situated on the chabootra an idol of Thakurji is kept which is being worshipped. The chabootra is in the possession of the plaintiff and whatever is offered on it is taken by the plaintiff.
The possession of plaintiff is proved by the witnesses of the plaintiff and railing wall separating the boundary of Hindus and Muslims exists from a long period…
In the year 1855, after the quarrel between Hindus and Muslims a wall in the form of the railing was erected to avoid controversy. So that Muslims may worship inside it and Hindus may worship outside it. So the outside land with chabootra which is in the possession of the plaintiff belongs to Hindus.
Though the place where Hindus worship they hold its possession since old because of which there cannot be objection to their ownership and the area surrounding around the wall of the Masjid and on the outer door word Allah is engraved.”
Despite the above findings on possession by and ownership of the Hindus, the suit was dismissed because a serious breach of law and order was apprehended. In appeal, the judgment of the trial court dismissing the suit was affirmed by the District Judge, Faizabad on 18/26 March 1886. The District Judge held that while it was unfortunate that a mosque had been constructed on land held sacred by the Hindus, an event which had occurred over three centuries earlier could not be remedied:
“It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindu, but as that event occurred 356 years ago it is too late to remedy the grievance all that can be done is to maintain that parties in status quo.”
The District Judge noted on a site inspection that the Chabutra had been occupied by the Hindus on which there was “a small superstructure of wood, in the form of tent”. The Chabutra was said to indicate the birth-place of Lord Ram. While maintaining the dismissal of the Suit, the District Judge came to the conclusion that the observations on possession and ownership in the judgment of the trial judge were redundant and were hence to be struck off. The judgment of the first appellate court was carried before the Judicial Commissioner, Oudh in a second appeal, who affirmed the dismissal of the suit on 2 November 1886. The Judicial Commissioner observed:
“The matter is simply that the Hindus of Ajudhia want to erect a new temple of marble … over the supposed holy spot in Ajudhia said to be the birthplace of Sri Ram Chandar. Now this spot is situate within the precincts of the grounds surrounding a mosque constructed some 350 years ago owing to the bigotry and tyranny of the Emperor Baber-who purposely chose this holy spot according to Hindu legend- as the site of his mosque. The Hindus seem to have got very limited rights of access to certain spots within the precincts adjoining the mosque and they have for a series of years been persistently trying to increase their rights and to erect building over two spots in the enclosure. (1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi. The executive authorities have persistently repressed these encroachments and absolutely forbid any alteration of the ‘status quo’. I think this a very wise and proper procedure on their part and I am further of opinion that Civil Courts have properly dismissed the plaintiff’s claim. The pleas on appeal to this … are wholly unsupported by facts in the case or by any document that appears to me … some of the reasoning of the Lower Appellant Court as to the limitations of the Civil Court jurisdiction. However I approve of their final conclusion to which it has come – and I see no reason to interfere with its order modifying the wording of part of the judgment of the Court of First Instance. There is nothing whatever on the record to show that plaintiff is in any sense the proprietor of the land in question. This appeal is dismissed with costs of all Courts.”
Submissions
434. Relying on the above observations of the Judicial Commissioner, Mr Shekhar Naphade, learned Senior Counsel emphasised five facets from the decision:
(i) The existence of the mosque;
(ii) The construction of a Chabutra in close-proximity;
(iii) The availability of a limited right of access to the Hindus;
(iv) The restraint imposed by the executive on attempted encroachments by the Hindus; and
(v) The rejection of the claim of the Hindus to ownership and possession.
435. All the three Judges of the Allahabad High Court rejected the plea of res judicata. Justice S U Khan held that the only thing which had been decided in the Suit of 1885 was that the status quo should be maintained in order to obviate the likelihood of riots between the two communities. In his view:
“Refusal to decide the controversy is the actual decision in the said suit”.
Assailing the above finding, Mr Naphade urged that there was an error on the part of the learned Judge in coming to the conclusion that nothing substantial had been decided in the Suit of 1885. He submitted that the judgment of the Judicial Commissioner indicated that Hindus had a limited right of access and that their claim of possession and ownership stood rejected.
436. Justice Sudhir Agarwal held that in the Suit of 1885, the only dispute was in regard to the construction sought to be made on the Chabutra. Hence, the suit did not relate to the entirety of the disputed site or building and the right of ownership or possession in respect of any part of the land in dispute was not involved. Justice Sudhir Agarwal held that unlike the suits which the High Court was adjudicating upon, only a portion of the property was involved in the Suit of 1885.
437. Assailing these findings, Mr Naphade urged that:
(i) Justice Sudhir Agarwal failed to notice the observations of the Judicial Commissioner in the earlier suit to the effect that the Hindus had a limited right of access and no right of possession or ownership;
(ii) The finding on the point of res judicata is contrary to the decision of this Court in K Ethirajan v Lakshmi261, where it has been held that the principle of res judicata would be attracted even in a situation where in the previous suit only a portion of the property was in dispute, whereas in a latter suit the whole of the property forms the subject matter of the claim; and
(iii) Justice Agarwal also held that there was nothing to show that the Hindus at large were aware of the previous suit. There was a serious situation of law and order which gave rise to a dispute between the two communities at or about the time when the Suit of 1885 was instituted. Therefore, an inference can be drawn under Section 114 of the Evidence Act that the Hindus were aware of the suit. A reasonable inference can be drawn from primary facts even if there is no direct evidence of the awareness of the Hindus of the institution of the earlier suit.
Justice D V Sharma, while coming to the conclusion that the bar of res judicata was not attracted, held that the earlier suit was not of a representative character since the requirements of public notice under Section 539 of the Code of Civil Procedure 1882 were not complied with. The learned Judge observed that neither were the parties to the earlier suit the same as those in the present proceedings, nor was the subject matter identical since the earlier suit only related to the Chabutra. Assailing these findings, Mr Naphade urged that the plaint in the earlier suit was for the benefit of the Hindus; the Secretary of State in Council represented all segments of the community and, in any event, the absence of a public notice under Section 539 would not obviate the bar of res judicata. In his submission, the application of Explanation VI to Section 11 of the CPC262 is not subject to Order 1 Rule 8.
438. Apart from assailing the findings which have been recorded by each of the three judges of the Allahabad High Court on the plea of res judicata, Mr Naphade has urged that the provisions contained in Section 11 of the CPC 1908 stand attracted for the following reasons:
(i) The matter has been directly and substantially in issue in the former suit between the parties since:
(a) the claim of ownership of possession of the Hindus was rejected by the Judicial Commissioner in the Suit of 1885; and
(b) there was no challenge to the existence of the mosque in the previous suit as a consequence of which there is an implicit acceptance of the title and right of the Muslims;
(ii) The plaintiff in the earlier suit who described himself as a Mahant of the Janmasthan essentially represented the cause of the Hindus and hence, res judicata would apply. The earlier suit was “between the same parties or between parties under whom they or any of them claim litigating under the same title”; and
(iii) The cause of action in the former suit is the same as that in the present batch of cases. The title to the property claimed by the Hindus is the same in both the suits and the cause of action is based on the right to construct the temple.
On these grounds, Mr Naphade submitted that the bar of res judicata is attracted under Section 11 read with Explanation VI of the CPC. He urged that the failure to follow the provisions of Section 30 of the Code of 1882 (akin to Order 1 Rule 8 of the CPC 1908) should make no difference since the provisions of Section 11 are not subject to Order 1 Rule 8.
Mr Naphade also urged that the principle of constructive res judicata under Explanation IV to Section 11 is attracted. Finally, he submitted that the earlier findings in the Suit of 1885 would operate as issue estoppel and since the order in the earlier suit was in rem; all Hindus would stand bound by the conclusion. He urged that the plan, which was annexed to the Suit of 1885, was essentially the same and hence the principle of estoppel by record would stand attracted.
Controverting the submissions, Mr K Parasaran, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5 submitted that the principles of res judicata are not attracted for the following reasons:
A. Parties are different:
(i) Neither the deities (the plaintiffs in Suit 5) nor the Sunni Central Waqf Board (the plaintiff in Suit 4) were parties to the Suit of 1885; and
(ii) The Suit of 1885 was not instituted by Mahant Raghubar Das in a representative capacity.
B. The suit was for asserting a personal right to construct a temple on the Chabutra:
(i) No application under Section 30 of the CPC 1882 which was in force when the earlier suit was instituted, corresponding to Order I Rule 8 of the CPC 1908 was filed;
(ii) Neither the deities nor the Hindu public claimed any right through Mahant Raghubar Das in 1885;
(iii) In Suit 4, an order was passed on 8 August 1962 under which the plaintiffs sued in their representative capacity on behalf of the Muslims and defendant nos 1 to 4 were permitted to be sued on behalf of the Hindus; and
(iv) Even assuming that the earlier suit was filed on behalf of all Hindus, the plaintiff-deities in Suit 5 are not bound by its outcome in view of the decision of this Court in Narayan Bhagwantrao Gosavi Balajiwale v Gopal Vinayak Gosavi263.
C. Issues and reliefs sought in the earlier suit are different:
(i) The Suit of 1885 was against the Secretary of State for India, for permission to construct a temple;
(ii) The present proceedings pertain to the character of the property- whether it is a public mosque or a place of public worship for Hindus; and
(iii) In Suit 5, the issue as to whether ‘Asthan Ram Janmabhumi’ is a juridical personality is an issue, which goes beyond the relief of the construction of a temple sought in the Suit of 1885.
D. The suit properties are distinct:
(i) In the Suit of 1885, the subject matter was only the Chabutra measuring 17×21 feet; and
(ii) In the present proceedings, the suit property in both Suits 4 and 5 comprises of the inner and outer courtyard.
E The Suit of 1885 was instituted when the CPC 1882 was in force. Section 13 of the CPC 1882 dealt with res judicata. Explanation V as it stood only covered persons who were litigating in respect of a private right claimed in common for themselves and others. In the CPC 1908, the expression “public right” was added to Explanation VI in view of the provisions of Section 91. The provisions of the CPC are both procedural and substantive. In the Suit of 1885 only a private right was sought to be enforced, whereas in the present proceedings a public right to worship is sought to be enforced. Even if the CPC 1882 was to be applied, which law prevailed as on the date of the filing of the Suit of 1885, the findings in that suit (which sought to enforce only a private right) would not operate as res judicata.
Analysis
439. The applicability of Section 11 is premised on certain governing principles. These are:
(i) The matter directly and substantially in issue in the suit should have been directly and substantially in issue in a former suit;
(ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;
(iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and
(iv) The issue should have been heard and finally decided by the court in the former suit.
Explanation VI to Section 11 is in the nature of a deeming provision which extends the ambit of the expression “between parties under whom they or any of them claim, litigating under the same title”. Under Explanation VI, where persons litigate bona fide in respect of a public right or a private right which they claim in common for themselves and others, all persons interested in such a right, shall be deemed to claim under the persons so litigating. In other words, to attract Explanation VI, it is necessary that there must be a bona fide litigation in which there is a claim in respect of a public right or a private right claimed in common together with others. It is only then that all persons who are interested in such a right would be deemed, for the purpose of the Section, to claim under the persons so litigating.
Order 1 Rue 8264 contains provisions under which one person may sue or defend a suit on behalf or for the benefit of all persons interested.
440. The Suit of 1885 was instituted when the CPC 1882 was in force. Section 13 contained a provision in regard to res judicata. Section 13 corresponds to Section 11 of the CPC 1908, with certain material differences. Explanation V to Section 13 contained a deeming provision stating when persons would be deemed to claim, litigating under the same title. However, Explanation V to Section 13 covered only persons litigating in respect of a private right claimed in common for themselves and others. In contrast, Explanation VI to Section 11 of the CPC 1908 covers persons litigating in respect of a public right or a private right in common for themselves and others. This distinction between Explanation V of Section 13 in the CPC 1882 and Explanation VI to Section 11 of the CPC 1908 is brought out in the following table containing the two provisions:
| Section 13 CPC 1882 | Section 11 CPC 1908 |
| Explanation V – Where persons litigate bonafide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating. | Explanation VI – Where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating. |
It may be noted at this stage that Section 92 of the CPC 1908 contains a provision corresponding to Section 539 of the CPC 1882. However, the CPC 1908 introduced Section 91 to deal with public nuisances and other wrongful acts affecting the public. The words “of public right” were introduced in Explanation VI of Section 11 of the CPC 1908 in order to give due effect to suits relating to public nuisances incorporated in Section 91. Thus, the deeming provision contained in Explanation V to Section 13 of the CPC 1882 was expanded in the corresponding provision contained in Explanation VI to Section 11 of the CPC 1908 to cover a case where persons litigate bona fide in respect of a private right or a public right claimed in common with others. When the earlier Suit of 1885 was instituted, Explanation V had no application to a situation where persons were litigating in respect of a public right as distinct from a private right.
441. Mr K Parasaran, learned Senior Counsel argued that the provisions of the CPC contain provisions some of which relate to matters of procedure while others deal with matters of substance (See Durgesh Sharma v Jayshree265). For instance, it has been held that the right to file an appeal from a judgment and decree in a suit is a substantive right and this right is governed by the law which prevailed on the date of the institution of the suit. Hence, in Garikapati Veeraya v N Subbiah Choudhry266, a Constitution Bench of this Court held:
“23… (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.”
Mr K Parasaran urged that Explanation V to Section 13 of the CPC 1882 excluded the application of res judicata where the earlier suit was for litigating a public right claimed in common with others.
Justice Sudhir Agarwal rejected the submission that it was the CPC 1882 that should be applied while analysing the application of the principles of res judicata. However, even on the basis that it was the CPC 1908 which would apply, the learned Judge came to the conclusion that the Suit of 1885 and the findings which were recorded by the Judicial Commissioner would not operate as res judicata.
Mr K Parasaran’s submissions essentially boil down to this: according to him Explanation V to Section 13 of the CPC 1882 (which held the field when the Suit of 1885 was instituted) applied when the earlier suit was being litigated on the basis of a private right claimed in common with others. Hence, a subsequent suit for agitating a public right claimed in common with others is not barred by the principles of res judicata as embodied in Explanation V. The ambit of the explanation was expanded in the CPC 1908 while introducing Explanation VI to Section 11 to cover a claim based on a public as well as a private right asserted in common with others. Mr K Parasaran urges that this provision which is introduced in Explanation VI cannot be construed to bar a suit instituted after the enforcement of the CPC 1908 on the basis of an adjudication made in a suit which was instituted in 1885 when the CPC 1882 held the field. This, in his submission would not be a matter of procedure but would take away a substantive right accruing to a party if the bar of res judicata would apply. Consequently, unless there was an explicit stipulation in the CPC 1908 providing for the principle of res judicata to apply to suits agitating a public right retrospectively, the suit instituted in 1885 cannot fall within the ambit of the bar within Explanation VI of the CPC 1908.
For the purposes of the present proceedings, it is not really necessary to analyse in any great detail this submission by Mr K Parasaran for, in any view of the matter, it is evident that the Suit of 1885 would not operate as res judicata either on the application of the provisions of Section 13 of the Code of 1882 or on the application of Section 11 of the Code of 1908. The pleadings and the findings in the earlier Suit of 1885 show that Mahant Raghubar Das was only asserting a right that was personal to him. The earlier suit was not instituted in a representative capacity; the issues framed, and reliefs sought were distinct and so were the suit properties.
442. Before a suit can be prosecuted or defended under Order I Rule 8, it is essential that there must be numerous persons having the same interest in a suit. Before a person can be allowed to either prosecute or defend the suit on behalf of others interested, specific permission of the court is mandated. Sub-rule 2 of Order I Rule 8 requires notice of the institution of the suit to all persons interested, in the manner as directed or by public advertisement. A person on whose behalf or for whose benefit a suit has been instituted or is being defended may apply to be impleaded as a party to the suit. Under sub-rule 4, no part of the claim in the suit can be abandoned and the suit cannot be withdrawn nor can a compromise agreement or satisfaction be recorded unless notice has been furnished to all persons interested. Subject to compliance with the provisions contained in Order I Rule 8, a decree in such a suit is binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.
In Kumaravelu Chettiar v T P Ramaswami Ayyar267, the Privy Council held:
“Explanation 6 is not confined to cases covered by Order 1, Rule 8 but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves.”
The above principle was followed in a decision of three judges of this Court in Narayana Prabhu Venketeswara Prabhu v Narayana Prabhu Krishna Prabhu268. This Court held that in a partition suit, each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. Hence:
“20…In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right “in common for themselves and others”. Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here.”
443. In Gurushiddappa Gurubasappa Bhusanur v Gurushiddappa Chenavirappa Chetni269, a learned Single Judge of the Bombay High Court (Justice Rangnekar) held:
“Order 1, rule 8, is exhaustive of what it says, and it is clear from it that it is only when the parties are numerous that a suit can be brought under the provisions of Order I, rule 8. That it is possible for a suit to be a representative suit within the meaning of Explanation VI, although it need not come under Order I, rule 8, and, therefore, need not be brought under the provisions of that Order, has been held from very earliest times in this country… Explanation VI, therefore, is not confined to cases covered by Order I, rule 8, but would include any litigation in which, apart from the rule altogether, parties are entitled to represent interested persons other than themselves.”
Hence, for the purpose of considering Mr Naphade’s arguments, we proceed on the principle that the provisions of Order I Rule 8 do not control the applicability of Explanation VI to Section 11 of CPC 1908. The applicability of the principles of res judicata in the facts of the present case needs to be analysed. The position which emerges on the touchstone of the principles contained in Section 11 is as follows:
(i) The first point to be considered is whether the parties to the subsequent suit are the same as the parties to the earlier suit or whether they litigate under the same title. The earlier suit was instituted by Mahant Raghubar Das describing himself as the Mahant of the Janmasthan situated at Ayodhya. The suit was not instituted by Raghubar Das as the Mahant of Nirmohi Akhara. Conspicuously absent in the Suit of 1885 is any reference to Nirmohi Akhara. Hence, the primary requirement for the applicability of Explanation VI to Section 11 is not attracted. The Suit of 1885 was a suit instituted by Mahant Raghubar Das in his personal capacity. It was not a suit either in his capacity as the Mahant of Nirmohi Akhara or a suit instituted jointly on behalf of the Hindus;
(ii) Neither the deities who are the first and second plaintiffs to Suit 5 nor the Sunni Central Waqf Board which is the plaintiff in Suit 4 were parties to the Suit of 1885. Mahant Raghubar Das instituted the earlier suit initially impleading only the Secretary of State for Council in India. Later, Mohd Asghar was impleaded in his capacity as a Mutawalli. The parties to the earlier proceedings were distinct;
(iii) The relief that was sought in the earlier suit was permission to construct a temple on Ramchabutra. In the present proceedings, the reliefs, which have